| Mr. Carl W. S. Chun | Director | |
| Ms. Deborah L. Brantley | Senior Analyst |
| Mr. Arthur A. Omartian | Chairperson | |
| Mr. Thomas B. Redfern III | Member | |
| Ms. Karen A. Heinz | Member |
APPLICANT REQUESTS: In effect, that his records be corrected to reflect promotion to pay grade E-4. He states, in effect, that his unit failed to type up his promotion and did not follow promotion practices. He submits no evidence in support of his request.
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 for a period of 3 years on 21 September 1972 and successfully completed training as a cook prior to being assigned to Fort Riley, Kansas. He was promoted to pay grade E-2 in December 1972 and on
21 September 1973 was promoted to pay grade E-3. His records contain copies of the orders, issued at Fort Riley, confirming his promotion.
In April 1974 he received a performance evaluation report indicating that his "duty performance in the Dining Facility is outstanding" and that his "knowledge of food preparation is excellent." He also received an MOS (military occupational specialty) evaluation test score of 117 in May 1974.
In August 1974 the applicant was reassigned to an ordnance battalion in Germany. In May 1975 he received an MOS evaluation test score of 40. An August 1975 performance evaluation report indicates that the applicant showed no self-discipline and had to be coached "even in the smallest task." It noted he had been counseled on numerous occasions and that his evaluator did not believe the applicant should be retained in the service. There is, however, no indication the applicant ever received any disciplinary actions.
In September 1975 the applicant returned to the United States and on
12 September 1975, at the completion of his enlistment contract, he was released from active duty. His separation document, which he authenticated, indicates that he was separated in pay grade E-3 and received an honorable characterization of service.
Army Regulation 600-200, in effect at the time, established the policies and provisions for the promotion of enlisted soldiers. It noted that an individual with 21 months of active service and 6 months time in grade as an E-3 were eligible for promotion consideration to pay grade E-4. The promotion, however, was not automatic and was subject to the recommendation of appropriate members of an individual’s chain of commander, approval by his unit commander, and announcement in orders.
There is no evidence, and the applicant has not provided any, that he was ever recommended for or promoted to pay grade E-4. There is no indication in his file that any error was made in recording any of his promotion information.
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 12 September 1975, the date was released from active duty and authenticated his separation document. The time for the applicant to file a request for correction of any error or injustice expired on
12 September 1978.
The application is dated 13 January 2003 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
__AAO__ ___TBR _ ___KAH _ CONCUR WITH DETERMINATION
| CASE ID | AR2003085625 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20030605 |
| 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. | 129.00 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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