APPLICANT REQUESTS: That his dental records be corrected to show that he injured tooth # 8 while he was on leave while in the Regular Army. In support of his application he submits several statements from individuals who state that he chippened his tooth in an automobile accident in August 1969 while he was on leave prior to his assignment to Germany.
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 personnel and dental records show:
He was inducted on active duty on 21 March 1968 and enlisted in the Regular Army on 30 March 1968. He was awarded the military occupational specialty of special forces radio operator and was promoted to pay grade E-5.
His dental records show that tooth # 31 was noted to be chipped on 17 July 1968. No other entries were made concerning any dental injuries.
He was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) on 20 March 1971.
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 20 March 1971, the date he was released from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 20 March 1974.
The application is dated 13 October 1995 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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