APPLICANT REQUESTS:  Correction of his records to show that he was appointed and separated from the service as a warrant officer.  He states that on 20 January 1951, while stationed in Pusan, Korea, he was promised by his commander that he would be recommended for appointment as a warrant officer if he reenlisted.  However, although he reenlisted, the commander never recommended him for the appointment. 

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 initially enlisted in the South Carolina Army National Guard on 4 January 1948 and served until 5 January 1948 when he enlisted in the Regular Army.  He was promoted to the rank of sergeant on 29 August 1950.

On 21 January 1951, while stationed in Pusan, Korea, the applicant reenlisted for a period of 3 years.  His reenlistment contract (DD Form 4) indicates that he reenlisted for his own vacancy.  He also received a $150.00 reenlistment bonus and cashed in 55 days of accrued leave.  He departed Korea in October 1951 and was subsequently transferred to Germany. 

On 6 January 1954 he was honorably discharged in the rank of sergeant.  He had served approximately 6 years of total active service.

A review of the applicant’s records maintained by the Department of Veterans Affairs (DVA) show that the applicant, while attempting to obtain service connected disability from the DVA for Post-traumatic Stress Disorder (PTSD) in 1990, claimed that he had been promised by his commander in Korea that he would be recommended for promotion to warrant officer if he reenlisted.  He further contended that his commander deceived him and that the act by the commander further compounded the stress he had to deal with.  The applicant, after several appeals was awarded 100 percent service connected disability for PTSD on 27 July 1993.  The claims by the applicant during the DVA hearings are the only reference to the alleged promise by his commander contained in any of the available records. 

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 6 January 1954, the date of discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 6 January 1957.

The application is dated 10 February 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