MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           02 MAY 2002                   
	DOCKET NUMBER:   AR2001065621

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Christopher J. Prosser		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 DD Form 214 be corrected to show a separation date of 7 July 1993 in lieu of 30 April 1993.

He implies that his leave and earning statements (LES) of May, June, and July 1993, indicate that he was on transition leave during those months.  The applicant submits a copy of his DD Form 214, orders removing him from active duty, and his leave and earning statements for the mentioned three months.  

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 enlisted in the Missouri Army National Guard for six years on       10 September 1963.  He was discharged from that agency on 3 January 1968 in order to enlist in the New Jersey Army National Guard, remaining with the New Jersey Guard until his transfer to the Retired Reserve on 31 January 1996.

He was ordered to active duty in an Active Guard/Reserve (AGR) status on         1 June 1981 and remained on active duty until his discharge in 1993.  His DD Form 214 shows that he was released from active duty under the provisions of National Guard Regulation 600-5 on 30 April 1993 and transferred to a National Guard unit in East Orange, New Jersey.  That form shows that he was involuntarily separated from a Title 32 AGR tour, that his character of service was honorable, and that he was authorized separation pay. 

The LES the applicant submits with his request shows that he was apparently receiving pay and allowances for the months of May and June 1993, but that most of those pay and allowances for those months were deducted on the July 1993 LES.  The portions of the LES concerning his debt, advance debt, refund, etc., are unexplainable.  The three LES do show a leave balance.  

National Guard Regulation 600-5 prescribes the policies and procedures for management of Army National Guard personnel in the AGR program serving on full time National Guard duty under Title 32, U.S.C., including continuation and separation.  It provides for separation from AGR because of mandatory removal dates, 20 years of active Federal service, and non-selection by an AGR continuation board.

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.

There is no evidence, nor has the applicant provided any, to indicate that his separation date was in error or unjust, notwithstanding the LES he has submitted, and as such there is no basis to correct his record to show that he was released from active duty in July 1993 in lieu of 30 April 1993.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 30 April 1993, the date he was released from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 30 April 1996.

The application is dated 6 November 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

__FNE__  __WTM   _  __CJP__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2001065621	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020502	
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.	142.00	
2.	110.00	
3.	252	
4.		
5.		
6.