MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 April 2002                   
	DOCKET NUMBER:   AR2001064039

	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. Karol A. Kennedy		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. Thomas Lanyi		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 show he was not drafted or that his Army service was voided.  He states that he had been discharged from the Navy in July 1955 as unfit and undesirable.  He had spent time in a Naval mental institution so he was unfit for Army service.  He has suffered hardship and damage from this.  He feels if he had not been drafted he would have had a normal productive life.  He provides his Navy and Army Reports of Separation, DD Forms 214, as supporting evidence.

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 were lost or destroyed in the National Personnel Records Center fire in 1973.  Information contained herein was obtained from alternate sources.

The applicant enlisted in the U. S. Navy on 23 April 1955.  He was discharged with a general discharge under honorable conditions for unsuitability on 14 July 1955.

The applicant’s Selective Service System Classification Records are not available and it cannot be determined if the applicant appealed his classification. His Record of Induction, DD Form 47, is not available and it cannot be determined if he informed the Army of his prior U. S. Navy service or of his treatment in a Naval mental institution.  He was inducted into the Army on         18 October 1955.  He was released from active duty on 26 May 1958 with a characterization of service of general under honorable conditions upon completing his expiration term of service.  He had completed 2 years and 1 day of creditable active service and had 220 days of lost time.  His DD Form 214 does not indicate that he had prior active service.  

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 18 October 1955, the date the applicant was inducted or, at the latest, 26 May 1958, the date he was separated.  The time for the applicant to file a request for correction of any error or injustice expired on   26 May 1961.

The application is dated 20 September 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

__kak___  __mdm___  __tl____  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001064039	
SUFFIX		
RECON		
DATE BOARDED	20020423	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.