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Decision Text

ARMY | BCMR | CY1990-1993 | 9310670.
Original file (9310670..rtf) Auto-classification: Denied
APPLICANT REQUESTS: In effect, restitution for the remaining time left on his reenlistment contract at the time of his separation from service. The applicant states that he had reenlisted for an assignment to Korea and was subsequently forced to retire without the benefit of a retirement physical. He contends that his contract was unjustly broken by the Army and that he should be compensated accordingly.

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 enlisted on 9 October 1940 and continued to serve through continuous reenlistments. His primary duties throughout his career were that of an armor crewman. He was promoted to the pay grade of E-7 on 14 November 1955.

On 1 December 1970, after serving over 30 years of total active service, the applicant reenlisted for a period of 3 years, under the present duty assignment reenlistment option.

On 1 April 1971 he submitted a request for voluntary retirement to be effective 1 October 1971. He subsequently requested to withdraw his retirement application based on his financial situation and his desire to serve in Vietnam. The Department denied his request to withdraw his application; however, it granted him an extension and allowed him to retire on 1 January 1972.

The applicant began his retirement physical on 15 April 1971; however, it was not completed until 2 June 1971.

The applicant was honorably discharged on 31 December 1971 and placed on the retired list in the pay grade of E-7, effective 1 January 1972. He had served 31 years, 2 months, and 23 days of total active 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 1 January 1972, the date of retirement. The time for the applicant to file a request for correction of any error or injustice expired on 1 January 1975.

The application is dated 26 September 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




                  David R. Kinneer
                  Executive Secretary

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