MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           20 November 2001                   
	DOCKET NUMBER:   AR2001062800

	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 Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Regan K. Smith		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 he be reimbursed the $112.00, plus interest, that was erroneously withheld from his pay.  When he entered the Army, his pay was $50.00 per month, from which he had three deductions -- $22.00 for an allotment, $6.00 for life insurance, and $7.00 for a war bond.  After he was court-martialed and they took two-thirds of his pay, he wanted to cancel his bond.  The bond stopped in July 1945 yet they continued to hold the money out of his pay until November 1946.  

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 was inducted into the Army and entered active service on 27 December 1944.
On 1 February 1945, deductions for war bonds commenced for $7.50.

On 31 May 1945, the applicant was convicted by a special court-martial of being absent without leave.  He was sentenced to hard labor without confinement and to a forfeiture of $16.00 pay per month for 6 months.  

Effective 30 June 1945, the applicant’s deduction of $7.50 for war bonds was discontinued.  

An Allotment Discontinuance form, WD AGO Form 30-S, shows that upon the applicant’s separation on 11 November 1946 he had only two allotments in  effect -- $6.40 for life insurance and a $22.00 allotment.

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 or 26 October 1961, whichever is later.  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 11 November 1946, the date applicant separated.  The time for the applicant to file a request for correction of any error or injustice expired on 26 October 1961.

The application is dated 27 August 2001 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

__jlp___  __mhm___  __rks___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001062800	
SUFFIX		
RECON		
DATE BOARDED	20011120	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.