MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:  17 May 2000
	DOCKET NUMBER:   AR1999033412

	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
Ms. Stephanie Thompkins		Director
Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Fred N. Eichorn		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 for his deceased father to a rank higher than private first class (PFC).  He states that in his father’s 5 years of service, 3½ years as a POW, he was only promoted one time to PFC.  This has been a scar that his father bore his entire life and his grade should have been a sergeant first class (E-7) (sic) or higher.  He submits a comprehensive statement and copy of some of his father’s records in support of his application.

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 former service member’s military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed personnel records and documents submitted by the applicant.

He entered into active service on 17 January 1941 as a private.  He served as a truck driver.

He was captured by the Japanese on 8 March 1942, in the grade of private and held as a POW for 43 months.  

Upon his return to military control he was advanced to PFC and separated in that grade on 5 May 1946, for Convenience of the Government – Demobilization.

His awards include the American Defense Service Ribbon with Bronze Star, American Theater Campaign Ribbon, Asiatic-Campaign Ribbon with 2 Bronze Stars, Philippine Defense Ribbon with 1 Bronze Star and the Good Conduct Medal with service ribbon.  He also received the POW Medal.

The FSM died on 11 February 1999.  The FSM received VA compensation throughout his lifetime.  The FSM’s wife is now in receipt of compensation derived from the FSM’s service and death.

In the absence of evidence to the contrary, a presumption of regularity applies that the FSM’s records are correct.

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 2 January 1947, the date the Correction Board was established.  The time for the FSM to file a request for correction of any error or injustice expired on 2 January 1950.

The application is dated 3 November 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

___CF___  __RW___  __FE____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR1999033412	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000517	
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.		
2.		
3.		
4.		
5.		
6.