file within the time prescribed may be excused by the Board if it finds it would be in the interest of justice to do so.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. The applicant has provided no new information, nor probative evidence, nor a convincing argument in support of this request. He was not promoted to sergeant, as he himself admits. The applicant’s contention that he should have been promoted to sergeant because he served as a squad leader, a sergeant position, does not translate into a promotion to that rank, and consequently, does not warrant a separation from the Army in other than his actual rank at the time of his discharge.
2. There is no error in the applicant’s records nor any injustice done the applicant. The Board’s original determination, that it was not in the interest of justice to excuse the failure to timely file, was made only after all aspects of the applicant’s case had been considered and it was concluded that there was no basis to recommend a correction of his records. Had the Board determined that error or injustice existed it undoubtedly would have recommended relief. The Board has never denied an application simply because it was not submitted within the required time.
3. In response to the applicant’s inquiry concerning his appeal rights, should he desire to further pursue this matter, he may appeal the Board’s decision to the court with competent jurisdiction.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicant’s request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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