APPLICANT REQUESTS: Correction of his separation documents (DD Form 214) dated 15 November 1985, to show that he was separated in the pay grade of E-4. He states that the rank earned on active duty indicates performance and responsibility and reflects on employment opportunity, therefore, he submits copies of his leave and earnings statements and a copy of his promotion 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 initially enlisted on 1 June 1976 and served until he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) in the pay grade of E-4.
On 20 May 1985 he enlisted in the USAR in the pay grade of E-3. He entered active duty for training as an aircraft powerplant repairer and remained on active duty until 15 November 1985, when he was released from active duty and transferred to his USAR unit in Illinois.
The applicants DD Form 214 correctly lists the applicants grade as E-3, the grade he held at the time he was released from active duty.
The applicant was promoted to the pay grade of E-4 on 20 January 1986 by his USAR unit in Illinois.
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 15 November 1985, the date of discharge. The time for the applicant to file a request for correction of any error or injustice expired on 15 November 1988.
The application is dated 26 January 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
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