MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            26 NOVEMBER 2002                  
	DOCKET NUMBER:   AR2002076947

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Hubert O. Fry, Jr.		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 his records be corrected to reflect that he was separated in the grade of Technician 5th Grade.  He states that he was a Technician 5th Grade throughout the war and that his records indicate that he had "bad time." Which he contends is incorrect.  He notes that he discovered the error on the day he was discharged and would like the error corrected for his "own benefit."  He submits no evidence in support of his request.

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 likely lost or destroyed during the 1973 fire at the National Personnel Records Center.  Information contained herein was reconstructed from alternative sources, including information provided by the applicant.

The applicant served on active duty from 24 February 1941 through 19 October 1945.  According to his War Department Adjutant General Form 53-33 (Enlisted Record and Report of Separation Honorable Discharge), his War Department Adjutant General Form 100 (Separation Qualification Record), and his final payment voucher, the applicant was a Private First Class at the time of his separation from active duty.  His final payment voucher confirms he was paid as a Private First Class upon his separation and the applicant authenticated both his separation document and the final payment voucher.

The applicant's separation document does indicate that the highest grade the applicant held on active duty was Technician 5th Grade and that he had 8 days of lost time.  There is no evidence available to the Board, or provided by the applicant, which explains either of these entries.

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.  While the applicant maintains that he should have been separated as a Technician 5th Grade, and that he did not have any "lost time" during his military service, there is no evidence, and the applicant has not provided any, which supports either of those contentions.  In the absence of evidence of any error or injustice there is no basis for the Board to grant relief in this case.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 19 October 1945, the date he was discharged from active duty and signed his report of separation.  However, in view of the fact that the board was not established until 2 January 1947 the applicant’s 3-year period in which to file an application for correction of military records expired on 
2 January 1950, 3 years from the date the Board was established.

The application is dated 22 July 2002 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

__SAC __  __RWA  _  __HOF__  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002076947	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20021126YYYYMMDD	
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.	110.00	
2.		
3.		
4.		
5.		
6.