MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 10 JULY 2003
         DOCKET NUMBER: AR2002081387


         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Roger W. Able		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Larry C. Bergquist		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: Issuance of a Department of Defense Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show that he was an instructor on active duty at the United States Army Engineer School at Fort Belvoir, Virginia for the period 27 July 1957 through 19 October 1957. He states that he was ordered to active duty for training in April 1957 and completed his training in July 1957. He states he was then asked “by the school to be an instructor” and did so until he was released from active duty in October 1957. The applicant contends that the time he spent as an instructor should be considered “regular Active Duty” and not “Active Duty For Training.”

In separate correspondence to the applicant’s congressional representative, he noted that he had recently suffered a stroke and needed his separation documents corrected to show that he served on active duty, other than for training purposes, in order to qualify for reduced prescription drugs from the Department of Veterans Affairs.

In support of his request he submits a copy of his 1957 separation document, which notes that he was “Ordered to 6 months ACDUTRA [Active Duty for Training].”

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 appointed in January 1955 and executed his oath as a United States Army Reserve second lieutenant in February 1955, following completion of a Reserve Officer Training Corps program.

Various documents in his Official Military Personnel File indicate that he was initially being ordered to active duty for a period of 2 years. However, the documents ordering him to active duty were amended and ultimately revoked, when, on 14 February 1957 he was “ordered to active duty for training for 6 months unless extended with individual’s consent or sooner relieved.” The orders indicated that the applicant was being order to active duty for training on 20 April 1957, was scheduled to report to Fort Belvoir not later than 25 April 1957 to attend the engineer officer basic course, and was scheduled to be released on 19 October 1957.

The applicant completed the basic course on 27 June 1957 and was subsequently released from attachment to the Student Officer Basic Detachment and attached to the United States Army Engineer School-A, following 15 days of authorized leave. The order noted the applicant’s release date from active duty was 19 October 1957, in accordance with the order initially ordering him to active duty for 6 months.

The orders releasing the applicant from the Student Detachment and further attaching him to the Engineer School included the names of 12 other officers in the same situation.

An officer evaluation report for the period 26 July 1957 through 19 October 1957 notes that the applicant was assigned a “job title” of “Rewriting Lesson Plans” and that he instructed both the Engineer Officer Basic Course and the Engineer Officer Advance Course.

On 19 October 1957 the applicant was released from active duty upon “expiration of active duty commitment.” He authenticated his separation document which noted that he had been called to active duty for training for a period of 6 months. As part of his separation processing, the applicant also authenticated a Department of the Army Form 1270 (Transfer or Release to Reserve Component of the Army) which noted that he had been called to active duty for training purposes and that his inclusive dates for training were 20 April 1957 through
19 October 1957, consistent with the orders, which called him to active duty.

The applicant remained a member of the United States Army Reserve until he was honorably discharged in February 1963.

The evidence available to the Board indicates that the applicant was ordered to active duty for training for a period of 6 months. Although he may have completed the Officer Basic Course in June, his term of service for which ordered to active duty did not expire until October. As such, the applicant was assigned to duties with the Engineer School until the term for which he was ordered to active duty expired. As with the other officers who were released from the Student Detachment following completion of the Officer Basic Course and further attached until completion of their active duty for training period, the applicant’s retention on active duty was in accordance with his orders and not as a result of his volunteering to remain in an active status. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.

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 19 October 1957, the date he was released from active duty following completion of his active duty for training period. The time for the applicant to file a request for correction of any error or injustice expired on 19 October 1960.

The application is dated 11 October 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 3-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__RWA _ __BJE __ __LCB __ CONCUR WITH DETERMINATION

Carl W. S. Chun
Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2002081387
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030710
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.