| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Raymond V. O'Connor, Jr. | Chairperson | |
| Ms. Margaret K. Patterson | Member | |
| Mr. Arthur A. Omartian | Member |
APPLICANT REQUESTS: In effect, that money taken from his pay in 1974 be restored to him. He states, in effect, that he had money taken from him in 1974 as a result of punishment under Article 15 of the Uniform Code of Military Justice. He states that there is "no record of actions of an Article 15" and that he was told there was a mix-up in social security numbers. The applicant submits no evidence in support of his request. The applicant does state that he has submitted evidence previously, but there was no record of any such correspondence in files available to the Board.
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 entered active duty in September 1973 and was assigned to Korea in February 1974. He was promoted to pay grade E-3 in September 1974.
Although the applicant's file does not contain copies on any non-judicial punishments, a document barring him from reenlisting does note that he was punished under Article 15 of the Uniform Code of Military Justice in November 1974 for being absent from a formation and in December 1974 for possession of marijuana. Punishment from both actions included forfeiture of pay. The November action also included a suspended reduction to pay grade E-2 that was vacated in December. Orders contained in the applicant's file confirm that he was reduced from pay grade E-3 to pay grade E-2 effective 2 December 1974 as a result of misconduct.
In December 1974 the applicant's unit commander initiated action to administratively separate him from active duty under the provisions of Army Regulation 635-200, paragraph 5-37 (Expeditious Discharge). The applicant's commander cited several counseling statements, and the applicant's two non-judicial punishment actions, as the basis for his recommendation. The applicant acknowledged receipt of the proposed separation and did not submit any statements in his own behalf.
The recommendation was approved and on 10 February 1975 the applicant was discharged.
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.
There is no evidence, and the applicant has not provided any, that money was erroneously taken from him in 1974. Although copies of the actual Article 15's may not be in his file, there are sufficient other documents to confirm that the applicant was in fact punished under Article 15 of the Uniform Code of Military Justice, and his punishment included forfeitures of pay.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 10 February 1975, the date the applicant was discharged. The time for the applicant to file a request for correction of any error or injustice expired on 10 February 1978.
The application is dated 12 June 2002 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
__RVO__ __MKP __ __AAO__ CONCUR WITH DETERMINATION
| CASE ID | AR2002076051 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20021001 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. | 110.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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