APPLICANT REQUESTS:  That his discharge from the USAR on 22 March 1979 be voided and that he receive promotion reconsideration to the rank of colonel by all boards that he would have been eligible for consideration had he not been discharged.  He states, in effect, that he did not receive the proper counseling and therefore was not aware of his options at the time he elected to be discharged from the USAR.  He goes on to state that had he been properly counseled, he would have elected to be transferred to the USAR Control Group (Inactive) until such time as he could practically participate actively in the USAR.  Consequently, when he decided to return to the active Reserve, he would have been eligible for consideration for promotion to the rank of colonel.  He further states that as a result of his being discharged, he had to apply for a new commission which resulted in the loss of additional pay and benefits that he otherwise would have retained had he been properly counseled.  He continues by stating that he waives all rights to any back pay and entitlements that the correction would afford him.  He also states that he was subsequently un-retired and is currently serving on extended active duty in the Air Force Reserve.

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:

On 14 July 1977, the applicant, while serving as a medical corps officer in the rank of lieutenant colonel, was honorably released from active duty and transferred to a USAR unit in Miami, Florida.

On 19 March 1979 the Army Reserve Personnel Center (ARPERCEN) sent the applicant a letter of notification of nonparticipation in the USAR.  The letter explained to the applicant his options at that time and informed the applicant that failure to select one of the listed options would result in automatic discharge.  There is no indication in the available records to indicate that the applicant ever responded to the notification.  Consequently, he was honorably discharged from the USAR on 22 March 1979.

On 12 March 1982 the applicant again accepted a commission as a USAR medical corps officer.  He was commissioned at this time in the rank of major.  He was subsequently promoted to the rank of lieutenant colonel on 22 April 1984.

He subsequently transferred from the USAR to the Texas Army National Guard and then to the New Mexico Army National Guard.

On 4 December 1990 the New Mexico Army National Guard notified the applicant (20-year letter) that he had completed the required years of service to be eligible for retired pay upon application at age 60 (28 June 2000).

On 31 May 1991 he was honorably released from the New Mexico Army National Guard in the rank of lieutenant colonel and transferred to the USAR Control Group (Retired Reserve).

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 22 March 1979, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 22 March 1982.

The application is dated 16 February 1994 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