ABCMR Memorandum of AC96-06802
APPLICANT REQUESTS: In effect, correction of his military records
to show on his DD Form 214 (Report of Separation from Active Duty)
that the date he entered active duty was
5 August 1973 instead of 28 June 1974.
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 born on 5 October 1956. On 27 June 1974, his parents signed
a DD Form 373 (Consent, Declaration of Parent or Legal Guardian)
consenting to the applicant’s enlistment in the Army. On 28 June
1974, the applicant enlisted in the Regular Army, in pay grade E-1,
for 3 years.
On 9 August 1974, the applicant was advised of the proposed honorable
discharge from the Army under Department of the Army message, dated
1 August 1973, Subject: Evaluation and Discharge of Enlistees Before
180 Active Duty Days, and of his rights. He indicated that he
understood that, due to his noncompletion of requisite active duty
time, the Department of Veterans Affairs (formerly known as the
Veterans Administration) and other benefits normally associated with
completion of honorable active duty service would be affected; that
he did not desire to have a counsel assist him in explaining the
discharge procedures; and that he did not desire to submit a statement
in his own behalf. On 12 August 1974, his discharge was approved.
His DD Form 214 shows that he entered active duty during that period
on 28 June 1974, and that he was honorably discharged on 21 August
1974. He had completed 1 month and 24 days active military service.
There is no evidence that the applicant made any effort to have the
alleged error or injustice corrected prior to this application.
Also, he has not submitted any documentation showing that he enlisted
in the Regular Army before 28 June 1974.
Title 10, U.S. Code, section 1552(b), provides that applications
for correction of military records must be filed within 3 years after
ABCMR Memorandum of AC96-06802
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 21 August 1974, the date
the applicant was discharged. The time for the applicant to file
a request for correction of any error or injustice expired on 21
The application is dated 13 April 1995, 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.
EXCUSE FAILURE TO TIMELY FILE
GRANT FORMAL HEARING
CONCUR WITH DETERMINATION
Karl F. Schneider