APPLICANT REQUESTS: In effect, correction of his military records to show on his DD Form 214 (Report of Separation from Active Duty) that the date he entered active duty was
5 August 1973 instead of 28 June 1974.
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 born on 5 October 1956. On 27 June 1974, his parents signed a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) consenting to the applicants enlistment in the Army. On 28 June 1974, the applicant enlisted in the Regular Army, in pay grade E-1, for 3 years.
On 9 August 1974, the applicant was advised of the proposed honorable discharge from the Army under Department of the Army message, dated 1 August 1973, Subject: Evaluation and Discharge of Enlistees Before 180 Active Duty Days, and of his rights. He indicated that he understood that, due to his noncompletion of requisite active duty time, the Department of Veterans Affairs (formerly known as the Veterans Administration) and other benefits normally associated with completion of honorable active duty service would be affected; that he did not desire to have a counsel assist him in explaining the discharge procedures; and that he did not desire to submit a statement in his own behalf. On 12 August 1974, his discharge was approved.
His DD Form 214 shows that he entered active duty during that period on 28 June 1974, and that he was honorably discharged on 21 August 1974. He had completed 1 month and 24 days active military service.
There is no evidence that the applicant made any effort to have the alleged error or injustice corrected prior to this application. Also, he has not submitted any documentation showing that he enlisted in the Regular Army before 28 June 1974.
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 21 August 1974, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 21 August 1977.
The application is dated 13 April 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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