MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            9 September 2003
	DOCKET NUMBER:   AR2003084911

	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	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas A. Pagan		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 show he was appointed a second lieutenant.  He states that he was recommended for appointment to second lieutenant.  If his application for appointment had not been delayed for 2 months, it would have reached the appropriate office for action before the War Department terminated the theater commander's authority to effect appointments on 2 October 1945.

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 were presumably lost or destroyed in the National Personnel Records Center fire in 1973.  Information contained herein was obtained from documents provided by the applicant (his appointment packet; his Order to Report for Induction; his WD AGO Form 53-55 (Enlisted Record and Report of Separation); his Honorable Discharge Certificate; and his WD AGO Form 100 (Separation Qualification Record).

The applicant was inducted into the Army on 16 April 1943 and entered active duty on 23 April 1943.  He arrived in the European-African-Middle Eastern Theater of Operations on 14 April 1944.  He was promoted to Staff Sergeant in the Signal Corps on 15 May 1944.

On 10 June 1945, the applicant applied for appointment as a second lieutenant in the Signal Corps.  On 10 June 1945, his immediate commander recommended approval.

On 13 June 1945, Headquarters, Eleventh Port, Normandy Base Section, Communications Zone, European Theater of Operations forwarded the application to the Commanding General, Normandy Base Section, Communications Zone, European Theater of Operations.

On 13 September 1945, the "CHANOR Base Section" forwarded the application to the Commanding General, U. S. Forces, Austria.  

On 3 October 1945, Headquarters, U. S. Forces, Austria forwarded the application to the Commanding General, U. S. Forces European Theater (Rear). It was noted that there was a 2-month delay in the application reaching their headquarters.  The applicant was still desirous of obtaining the appointment; 

however, under current directives it was impossible to process the application.  Information as to what action should be taken was requested.

On 13 October 1945, Headquarters, U. S. Forces European Theater (Rear) returned the application to the Commanding General, U. S. Forces, Austria without action inasmuch as the War Department terminated the theater commander's authority to effect appointments of second lieutenants, Army of the United States, on 2 October 1945.  

On 28 October 1945, the application was returned to the applicant's current unit of assignment.

On 8 January 1946, the applicant was demobilized in the grade of Staff Sergeant.

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.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been, discovered on 8 January 1946, the date the applicant was demobilized, or no later than 2 January 1947, the date the Board was established.  The time for the applicant to file a request for correction of any error or injustice expired on 2 January 1950, 3 years after the establishment of the Board.

The application is dated 28 December 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

__slp___  __wtm___  _tap____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003084911	
SUFFIX		
RECON		
DATE BOARDED	20030909	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	102.00	
2.		
3.		
4.		
5.		
6.