MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           20 MAY 2003                  
	DOCKET NUMBER:   AR2002078560

	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. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. Melvin H. Meyer		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Mr. Jose A. Martinez		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 he was promoted to the pay grade of E-6.  The applicant believes racial discrimination was a factor in his not being promoted beyond the pay grade of E-3, that one incident that resulted in his demotion unjustly prejudiced his future promotions, and that for 12 months he did not get promoted despite having no further trouble and having excellent ratings on his conduct and efficiency.  He feels he was an excellent soldier and wants his rank to reflect that.  In support of his request he submits copies of his DA Form 24 (Service Record), his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and a copy of his reduction orders.  

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:

The applicant was inducted into the Army of the United States on 16 May 1963, for a period of 2 years.  He completed basic combat training at Fort Gordon, Georgia and advanced individual training at Fort Bliss, Texas.  He served in Germany from October 1963 to April 1965.

He was promoted to E-2 and E-3 on 16 September 1963, and 20 January 1964, respectively.

On 12 September 1963, he accepted nonjudicial punishment, under the provision of Article 15, Uniform Code of Military Justice, for loitering on post.  His punishment included restriction, extra duty and a forfeiture.

On 2 March 1964, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) on 1 March 1964.  His punishment included reduction to the pay grade of E-2, restriction and a forfeiture.

The applicant’s records show he was restored to the pay grade of E-3 on 1 April 1964.

On 3 May 1965, the applicant was honorably discharged under the provisions of Army Regulation 635-205, for early release of overseas returnees.  He was separated in the pay grade of E-3.  His DD Form 214 indicates he had 1 year,   11 months and 18 days of creditable service.  

Army Regulation 600-200, then in effective, provided in pertinent part, that in order for a soldier to be eligible for appointment to the pay grade of E-4, E-5 and E-6, the soldier must have the required amount of time in grade, be in an appointable status, be recommended by the unit commander, hold and be serving in an MOS in which the appointment is authorized, be qualified for the skill level required for the next higher grade, be serving in a pay grade next below that in which the appointment is made, occupy a position vacancy of a higher rank or pay grade, and be physically qualified to perform the duties of the MOS and grade to which the appointment is made. 

There is no evidence in the applicant’s available records nor did he provide documentation to show that he was eligible for, or had been recommended for appointment to any grade higher than the pay grade of E-3.  

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 3 May 1965, the date he was discharged.  The time for the applicant to file a request for correction of any error or injustice expired on 3 May 1968.

The application is dated 9 August 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

__MHM  _  __DSJ __  __JAM __  CONCUR WITH DETERMINATION

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

INDEX

CASE ID	AR2002078560	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030520	
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.	136.00	
2.		
3.		
4.		
5.		
6.