APPLICANT REQUESTS: In effect, the applicant requests that his records reflect that he was discharged in pay grade E-5. He states that he was a good soldier and a credit to the Army for 10 years. He then began to experience problems when he got married in 1987, which reflected on his career. His evaluations were good and he received medals.
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 entered the Army on 1 March 1979, was trained as an armor crewman and had been on continuous active duty until his discharge in January 1989.
The applicant was AWOL for two days in August 1981. The applicant was promoted to pay grade E-5 effective
2 March 1984. He was AWOL for one day in June 1986.
The applicant was AWOL from 5-8 February 1988, from
7-8 March 1988, and from 1-5 June 1988.
On 4 May 1988 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to go to his place of duty, and for AWOL from 18-21 April 1988. He was reduced to pay grade E-4.
On 23 June 1988 a MOS (military occupational specialty)/Medical Retention Board determined that the applicants permanent medical condition prevented him from performing the full range of physical tasks required of his primary MOS in a worldwide environment, and recommended that the applicant appear before a Medical Evaluation Board (MEB).
On 8 August 1988 the applicant was barred from reenlisting.
On 13 December 1988 a MEB diagnosed the applicants condition as idiopathic loss of plantar fat pad and heel pad, with intractable plantar keratoses at the fourth metatarsal head, base of fifth metatarsal; and moderate degenerative changes with exostosis at the right great toe metatarsal phalangeal joint. The MEB stated that he was unfit and recommended that the applicant be referred to a physical evaluation board (PEB). The applicant concurred, but indicated that he desired to remain on active duty.
On 14 December 1988 the applicant requested to the President of the PEB that he be continued on active duty.
On 19 December 1988 a PEB determined that the applicant could not perform the duties required by grade and military specialty and found him physically unfit. The PEB recommended a disability rating of 20 percent and that the applicant be separated with severance pay. That recommendation was approved on 27 December 1988.
On 4 January 1989 the applicants request to remain on active duty was disapproved. The applicant was discharged with disability severance pay in the amount of $21,648.00, on 24 January 1989 at Fort Knox, Kentucky. His pay grade at the time of his discharge was E-4. He had 9 years, 10 months, and 10 days of active service.
Army Regulation 600-8-19 provides the policy and procedures for the promotion of enlisted personnel. Chapter 3 of that regulation states, in effect, that in order for a soldier to be promoted to pay grade E-5, he must be identified as being eligible for promotion, recommended by his unit commander, appear before and be recommended by a promotion board. Promotion is then dependent on the soldiers meeting or exceeding promotion cutoff scores announced monthly by DA.
Paragraph 1-10 of the aforementioned regulation states, in effect, that soldiers who are barred from reenlistment are not promotable and are not eligible for promotion consideration by field commanders.
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
24 January 1989, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 24 January 1992.
The application is dated 27 July 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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