APPLICANT REQUESTS:  That his summary court-martial conviction be expunged and that he be advanced to the rank of sergeant major (E-9) on the retired list.  He contends that he was suffering from anxiety and stress prior to his court-martial, but this was never taken into consideration. He also contends that, in February 1971, he was evaluated for promotion to staff sergeant and placed on the promotion list with 558.1 promotion points, but was never reevaluated in 1972 and 1973.

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 born on 22 July 1949 and enlisted in the Regular Army on 12 January 1967.  Following completion of the required military training, he was assigned to a unit in Germany, with duty as an armor crewman.  The applicant served on continuous active duty until his retirement on 31 May 1987. Upon retirement in the rank of sergeant first class (E-7), he had 20 years, 4 months, and 10 days of creditable service.

The applicant’s available records indicate appointments and reductions as follows:

			RANK/GRADE		DATE OF RANK

			 PVT/E-1			   670112
			 PVT/E-2			   670512
			 PFC/E-3			   670727
			 SP4/E-4			   680702
			 SP5/E-5			   690815
			 SP4/E-4			   730622
			 SGT/E-5			   760809
			 SSG/E-6			   770809
			 SFC/E-7			   830630

His only reduction occurred as a result of a summary court-martial conviction on 20 June 1976.  During the period 17-26 April 1973, he was absent without leave from his unit.  Tried by a summary court-martial, he was convicted and sentenced to reduction to SP4 and 30 days restriction.

Army Regulation 600-200, then in effect, placed the requirement for promotion reevaluation on the individual soldier.  It required the soldier to submit his request in writing and advised him that reevaluation could lead to a loss of recommended promotion list status:  when the soldier was not recommended for promotion by a majority of the board, or; when the total administrative points fell below 550 for promotion to staff sergeant.  There is nothing in the applicant’s record to show that he ever applied for promotion reconsideration.

Because the applicant was tried by a summary court-martial, no record of that trial exists for review by this Board.  It cannot be stated whether the applicant’s mental state was taken into consideration during his court-martial.  Further, the Military Justice Act of 1983 (Public Law 98-209), provides, in pertinent part, that military correction boards may not disturb the finality of a conviction by court-martial.

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 31 May 1987, the date discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 31 May 1990.

The application is dated 29 August 1995 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.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director