MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  14 September 2000
	DOCKET NUMBER:  AR1999032745

	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	
	Mr. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Elzey J. Arledge		Member	
	Ms. Margaret Patterson		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:  Promotion from first lieutenant to captain which was denied to him in 1950.  He is also requesting, in effect, advancement on the retired list to the rank of captain.  He states he was previously promoted to captain and should have justly been appointed in that rank in 1950 during the Korean conflict.  Since the conflict was not declared a war he was denied the promotion, while others were called to active duty and did receive promotions.  He also states he is due compensation for the promotion.

On 20 July 2000 the applicant advised an official of the Reserve Promotions Branch, Total Army Personnel Command, that he is in poor health and desires more money for his wife, and that he is requesting advancement on the Retired List.

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:

The applicant was born on 7 September 1921 and initially served on active duty as an enlisted man in the Army Air Force from 8 September 1939 to 
22 December 1942.  

On 23 December 1942 he was commissioned as a second lieutenant from the officer candidate school, Camp Lee, Virginia, with concurrent active duty.  He was promoted to first lieutenant 1 March 1944, and was released from active duty 9 January 1946.  He was inactive from 10 January 1946 to 26 February 1947.

Thereafter he served on active duty in the Army as follows:

27 February to 20 October 1947 in an enlisted status.

21 October 1947 to 27 March 1953 in the rank of first lieutenant.

28 March 1953 to 30 September 1961 in the rank of master sergeant.

He served in the Reserve, not on active duty as follows:

4 March 1946 to 1 January 1947 in the rank of first lieutenant.

2 January 1947 to 27 March 1953 in the rank of captain.

1 July 1954 to 10 February 1956 in the rank of captain.

11 February 1956 to 30 September 1961 in the rank of major.

His request for active duty in the rank of captain in 1947 was denied.  

Upon his discharge on 27 March 1953, all of his appointments were terminated.  He was later appointed as a Reserve captain effective 1 July 1954 and promoted as a Reserve major effective 11 February 1956.  

He was last reenlisted in the Regular Army on 2 December 1955 in the rank of master sergeant (pay grade E-7), and was promoted to master sergeant (Temporary) (pay grade E-8) on 29 June 1961.  He applied for voluntary retirement for length of service on 1 August 1961.

He was a dual component enlisted man.  While on active duty in his Regular Army enlisted status, he maintained his Reserve officer status.

His statement of service, prepared on 5 September 1961 for length of service retirement purposes, shows his highest grade held was first lieutenant (pay grade 0-2) and his current grade as master sergeant (pay grade E-8).

He was voluntarily separated for length of service retirement on 30 September 1961 and placed on the Retired List on 1 October 1961.  He was retired in his current rank of master sergeant (pay grade E-8), with 20 years, 11 months and 
6 days of total active service, and 1 year, 1 month and 17 days of inactive service.

He completed 30 years of total service on 24 October 1970, including his Retired List service.

On 14 December 1970 letter orders were published by the Adjutant General announcing the applicant’s advancement on the Retired List to first lieutenant effective/retroactive to 25 October 1970.

Pertinent regulations provide for advancement on the Retired List upon completion of 30 years of total service to the highest grade satisfactorily held on active duty.

The applicant’s records do not show he was entered on active duty or served in the rank of captain.

It is noted that regulations governing this Board specify that military service records are presumed correct, and that the burden of showing otherwise rests with the applicant.

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 1950, the year he states he was denied promotion to captain, or the latter date of 14 December 1970, the date he was advanced to first lieutenant and not captain on the Retired List.  Therefore, the time for the applicant to file a request for correction of any error or injustice expired on 14 December 1973.

The application is dated 22 October 1999, 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.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__ro____  __ea____  _mp_____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999032745	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000914	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.