MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           15 AUGUST 2002                   
	DOCKET NUMBER:   AR2002069856

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Jose A. Martinez		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his records be corrected to reflect that he was "stationed in Vietnam during [his] enlistment."  He states that he was sent to Vietnam in 1972 or 1973 and that he was then stationed in Germany.  He notes that he needs the information on his separation document to support his request "for service connection of diabetes due to exposure to agent orange."  He submits no evidence in support of his request.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted and entered active duty on 3 November 1972.  While records available to the Board do contain original documents associated with his 1972 enlistment and a copy of orders reassigning the applicant from Germany to Fort Jackson, South Carolina for separation processing, they do not contain any other original documents associated with his active duty service.  However, a DA Form 20 (Enlisted Qualification Record) prepared and authenticated by the applicant in 1975 while a member of the Army Reserve, does indicate the applicant completed training as an infantryman at Fort Jackson, South Carolina and in April 1973 was assigned to a unit in Germany.  That same document indicates the applicant remained in Germany until October 1974 when he returned to the United States for separation processing.  He was released from active duty on 
29 October 1974.

The 1975 DA Form 20 indicates the applicant was promoted to pay grade E-3 in September 1973 and to pay grade E-4 in March 1974 while in Germany.  His only overseas service, listed in item 31 (foreign service) on the DA Form 20, is Germany.  That same information is recorded in the remarks section of his DD Form 214 (Report of Separation from Active Duty).  The applicant authenticated his DD Form 214 with his signature.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, and the applicant has not provided any, which confirms that he was assigned to Vietnam while on active duty between 1972 and 1974.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 29 October 1974, the date was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 
29 October 1977.

The application is dated 14 January 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant's entire file.  It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant's failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__JNS___  __INW __  __JAM__  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2002069856	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020815	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.