| Mr. Carl W. S. Chun | Director | |
| Mrs. Nancy Amos | Analyst |
| Ms. Celia L. Adolphi | Chairperson | |
| Mr. Curtis L. Greenway | Member | |
| Mr. Donald P. Hupman, Jr. | Member |
APPLICANT REQUESTS: In effect, that the Article 15 he received while in Vietnam be voided and he receive all due back pay and allowances. He states that he was a victim of a racial hate crime. He was only defending himself. He provides no supporting evidence.
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 are not complete. The information contained herein was obtained from reconstructed records.
The applicant enlisted in the Regular Army on 6 July 1970. He served in Vietnam from 14 December 1970 – 10 December 1971. His Enlisted Qualification Record, DA Form 20, is not available. There is no Article 15 filed in the available records. He was released from active duty on 28 March 1972 in pay grade E-4. His Report of Transfer or Discharge, DD Form 214, shows his date of rank as 10 May 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 no later than to 28 March 1972, the date the applicant was released from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 28 March 1975.
The application is dated 22 June 2001 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. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__cla___ __clg___ __dph___ CONCUR WITH DETERMINATION
| CASE ID | AR2001059475 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 20010911 |
| TYPE OF DISCHARGE | |
| DATE OF DISCHARGE | |
| DISCHARGE AUTHORITY | |
| DISCHARGE REASON | |
| BOARD DECISION | (DENY) |
| REVIEW AUTHORITY | |
| ISSUES 1. | 126.04 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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