APPLICANT REQUESTS:  In effect, promotion to staff sergeant. He notes he was never promoted beyond private first class because he was mistakenly transferred out of his tabulating machine operator specialty to duties as a clerk typist.  He states he was always in an attached, unassigned or “unit overhead” and so was never promoted.

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 RECORDS:  The applicant’s military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained reconstructed from alternative source.

He served on active duty between 20 November 1942 and 
16 February 1946.  His grade at the time of separation was private first class and his military occupational specialty is as “tabulating machine operator.”

The applicant indicated in correspondence which accompanied his application that he was reduced from private first class to private as a result of a summary court-marshal in August 1945 which was convened after he told his section leader that he “was not a typist.”  He notes he was promoted to private first class prior to his discharge in February 1946. The fact that the applicant claims to have been reduced as a result of a court-martial and then subsequently promoted is inconsistent with his claim that his status as “attached, unassigned or unit overhead” prevented him from being promoted.  Additionally, his separation report indicates his military specialty at the time of separation was “tabulating machine operator” which tends to indicate he was not incorrectly reclassified, although he may have performed other duties during his military service.

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 16 February 1946, 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 17 June 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