APPLICANT REQUESTS: In effect, that he be reinstated to active duty, promoted to Regular Army (RA) major, and retired for length of service with credit for 30 years of active federal service at the grade he would have attained had he not been unjustly discharged from the service. He further requests that an investigation be conducted to ascertain if undue influence was exerted by individuals with whom he conducted inspector general (IG) inspections and who had an interest in his not being promoted. He states, in effect, that he was unjustly denied permanent promotion to RA major after being twice nonselected and suspects that there were some individuals whom he inspected while he was serving as an IG inspector that wanted to get even with him because of their failing the IG inspection and that they may have taken part in the promotion boards that nonselected him. He also states that he tried to join the USAR in 1986 and was informed that his records had been sealed. He goes on to state that there is no reason for his records to be sealed and desires an explanation as to why such would be the case. He continues by stating that a review of his records will show that he was clearly in the top 20% of captains being considered for promotion to RA major and that there is not a logical explanation other than undue influence to explain his nonselection.
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 was commissioned as a USAR infantry second lieutenant with a concurrent call to active duty upon graduation as the distinguished military graduate from ROTC on 8 June 1963. He accepted an RA appointment on 8 July 1963. He was promoted to the rank of captain in the RA on 8 July 1970 and to the rank of major in the Army of the United States on 25 February 1971.
On 2 September 1977 he was notified by the Department that he had been twice nonselected for promotion to the rank of RA major and that he must be discharged no later than 1 March 1978.
Accordingly, he was honorably discharged on 1 March 1978. He had served 14 years, 7 months, and 24 days of total active service and was authorized to receive severance pay.
There is no indication in the available records to show that the applicants records have ever been sealed or subject to nondisclosure.
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 March 1978, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 1 March 1981.
The application is dated 12 December 1993 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
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