MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            19 August 2003   
	DOCKET NUMBER:   AR2003086716

	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:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. John T. Meixell		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 discharged and not placed in the Individual Ready Reserve (IRR).  He states that he resigned from the military in December 1984 due to a work conflict.  He was kept on active status in the IRR without his knowledge.  He was passed over for promotion twice in that period of time.  He received no communication in any form advising him of this active status.

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:

After having had prior enlisted service, he was commissioned a second lieutenant in the U. S. Army Reserve (USAR) and served on active duty from      2 February 1970 through 23 April 1972.  He was released from active duty on that date and assigned to the USAR Control Group (Annual Training).  

The applicant transferred to the Army National Guard (ARNG) on an unknown date.  

On 6 February 1981, the applicant requested assignment to the Inactive National Guard (ING) for a maximum of one year.  He had started his own business and needed the additional time devoted entirely to being a self-employed businessman.  Effective 1 March 1981, he was transferred to the ING.

On 12 August 1982, the applicant's commander requested the applicant's separation from the ING and the Maryland ARNG and assignment to the USAR Control Group as attempts to contact him had been fruitless.  

Apparently, the applicant was not separated from the ING in 1982.  State of Maryland Military Department Orders 267-1 dated 22 December 1983 relieved him from the ING and transferred him to Company B, 2d Special Forces Battalion, 20th Special Forces Group (Airborne) effective 10 December 1983.  

Effective 29 December 1984, the applicant was transferred back to the ING.  

Effective 20 September 1990, the applicant was relieved from the ING and transferred to the USAR Control Group.  

National Guard Regulation 614-1 prescribes policies and procedures for effective management of soldiers in the ING and for transfer into and out of the ING.  It states that the ING is an administrative category that allows soldiers in the ARNG to remain in the ARNG when for some reason (such as incompatibility with civilian employment) they are unable to participate satisfactorily in regularly scheduled training assemblies and/or annual training.  All units that have ING soldiers assigned will conduct an annual ING muster assembly concurrently with a regularly scheduled unit training assembly.  Attendance of all ING soldiers is mandatory unless out of State or country due to temporary employment, residency, or missionary work (in which case the soldier is required to inform his unit of his scheduled departure date, address, and estimated date of return).  

National Guard Regulation 614-1 states that commanders will send each ING soldier a muster letter at least one month before the annual muster assembly.  The records of soldiers who do not respond to the muster letter, do not attend the muster, give reasons for nonattendance, and whose notification letters were returned as not deliverable will be reviewed.  If it is determined the soldiers will not be available for mobilization, they will be considered for discharge action or transfer to the IRR.  It states that an officer who as a result of screening action is found not qualified or available for mobilization will be separated or transferred to the IRR.  

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 in 1984, when the applicant states he was incorrectly placed in the IRR, or on 20 September 1990, when the applicant actually was placed in the IRR.  The time for the applicant to file a request for correction of any error or injustice expired on 20 September 1993, 3 years after the applicant actually was placed in the IRR.

The application is dated 29 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 three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__fne___  __mvt___  __jtm___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2003086716	
SUFFIX		
RECON		
DATE BOARDED	20030819	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	135.01	
2.		
3.		
4.		
5.		
6.