MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            22 JULY 2003                   
	DOCKET NUMBER:   AR2002082450

	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. John N. Slone		Chairperson	
	Mr. Thomas D. Howard, Jr.		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:  That his records be corrected to show that he was an infantry soldier, assigned to a cavalry division in Vietnam, and that he was awarded the Combat Infantryman Badge.  The applicant states that his separation document does not show his service in Vietnam and that he has been trying to prove to his friends, family, and hospital treatment team, that he served in Vietnam, despite the lack of that information on his separation document.  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 show:

He was inducted and entered active duty on 16 December 1970.  He successfully completed basic and advanced individual training, and on 2 July 1971 was awarded a military specialty of 76A (supply clerk).

Orders issued at Fort Jackson, South Carolina, where the applicant was undergoing training, reassigned the applicant to the United States Army Personnel Center at Fort Lewis, Washington, upon completion of training.  His reporting date to Fort Lewis was established as 21 July 1971.

On 22 July 1971 the applicant assumed duties as a supply specialist at the Personnel Center at Fort Lewis.

Although documents associated with his administrative separation action were not available to the Board, his separation document does indicate that the applicant was released from active duty on 10 November 1971, with an honorable characterization of service, under the provisions of Army Regulation 635-200, paragraph 5-33 for failure to demonstrate adequate potential for promotion advancement.  At the time of his separation he had approximately 11 months of active service.  His separation document indicates that he did not have any Vietnam service and there is no evidence in available records that the applicant was ever assigned to Vietnam.

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, and the applicant has not provided any, that he served in Vietnam.  In the absence of such evidence, there is no basis to correct his record.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 November 1971, the date the applicant was released from active duty and authenticated his separation document.  The time for the applicant to file a request for correction of any error or injustice expired on 10 November 1974.

The application is dated 2 November 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

__JNS __  __TDH __  ___TL___  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002082450	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030722	
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.	107.00	
2.	110.00	
3.		
4.		
5.		
6.