MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            05 JUNE 2003                  
	DOCKET NUMBER:   AR2003085625

	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. Arthur A. Omartian		Chairperson	
	Mr. Thomas B. Redfern III		Member	
	Ms. Karen A. Heinz		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:  In effect, that his records be corrected to reflect promotion to pay grade E-4.  He states, in effect, that his unit failed to type up his promotion and did not follow promotion practices.  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 entered active duty for a period of 3 years on 21 September 1972 and successfully completed training as a cook prior to being assigned to Fort Riley, Kansas.  He was promoted to pay grade E-2 in December 1972 and on 
21 September 1973 was promoted to pay grade E-3.  His records contain copies of the orders, issued at Fort Riley, confirming his promotion.

In April 1974 he received a performance evaluation report indicating that his "duty performance in the Dining Facility is outstanding" and that his "knowledge of food preparation is excellent."  He also received an MOS (military occupational specialty) evaluation test score of 117 in May 1974.

In August 1974 the applicant was reassigned to an ordnance battalion in Germany.  In May 1975 he received an MOS evaluation test score of 40.  An August 1975 performance evaluation report indicates that the applicant showed no self-discipline and had to be coached "even in the smallest task."  It noted he had been counseled on numerous occasions and that his evaluator did not believe the applicant should be retained in the service.  There is, however, no indication the applicant ever received any disciplinary actions.

In September 1975 the applicant returned to the United States and on 
12 September 1975, at the completion of his enlistment contract, he was released from active duty.  His separation document, which he authenticated, indicates that he was separated in pay grade E-3 and received an honorable characterization of service.

Army Regulation 600-200, in effect at the time, established the policies and provisions for the promotion of enlisted soldiers.  It noted that an individual with 21 months of active service and 6 months time in grade as an E-3 were eligible for promotion consideration to pay grade E-4.  The promotion, however, was not automatic and was subject to the recommendation of appropriate members of an individual’s chain of commander, approval by his unit commander, and announcement in orders.  
There is no evidence, and the applicant has not provided any, that he was ever recommended for or promoted to pay grade E-4.  There is no indication in his file that any error was made in recording any of his promotion information.  

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 12 September 1975, 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 
12 September 1978.

The application is dated 13 January 2003 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 3-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__AAO__  ___TBR _  ___KAH _  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003085625	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030605	
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.	129.00	
2.		
3.		
4.		
5.		
6.