RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 SEPTEMBER 2004
      DOCKET NUMBER:  AR2004100573


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Raymond Wagner                |     |Chairperson          |
|     |Mr. Roger Able                    |     |Member               |
|     |Ms. Eloise Prendergast            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show that he
has      26 years and 23 days of active federal service for retirement, and
in effect, that he receive retirement pay for that period of service.

2.  The applicant states that his records should be corrected to show that
he retired on 13 November 1970, vice 1 August 1966, with 26 years and 23
days of active federal service.  The pay records show the wrong retirement
day and years of service for pay purposes.

3.  The applicant provides a copy of a 13 November 1970 DD Form 214 (Report
of Transfer or Discharge) and a copy of a 31 July 1966 DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 13 November 1970.  The application submitted in this case
is dated 7 November 2003.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant served in the Navy from 1943 to 1946.  His Navy service
records are unavailable; however, a statement of service shows that he
served on active duty in the Navy from 27 December 1943 to 20 April 1946.

4.  The applicant's DD Forms 214 show periods of enlistments in the Army
from 21 June 1948 to 30 August 1951, 31 August 1951 to 30 August 1957,
          10 September 1957 to 21 July 1963, and 22 July 1963 to 31 July
1966.

5.  The applicant retired from the Army on 31 July 1966.  His DD Form 214
shows that he had 20 years, 4 months, and 25 days of active service.

6.  On 4 May 1967 the applicant requested that he be recalled to active
duty from his retired status.  His request was approved and he was recalled
to active duty on 1 August 1967.  He was released from active duty and
reverted to the retired list on 13 November 1970.  His DD Form 214 shows
that he had 3 years,            3 months, and 13 days of active service
during the period in which he was recalled to active duty, and 22 years, 9
months, and 10 days of other service, for a total of 26 years, 0 months,
and 23 days of total active service.

7.  A 5 February 1971 AGPZ Form 977 (Data for Retired Pay) shows that he
had 23 years, 8 months, and 8 days of service credited for retired pay.  On
                4 February 1999 the Army Reserve Personnel Command provided
a statement to Fort Sam Houston, Texas, to the effect that the applicant's
total service in determining the applicant's retired pay was 23 years, 8
months, and 15 days.  Information from the Defense Finance and Accounting
Service in Cleveland indicates that he is being paid for 23 years, 8
months, and 8 days for his active federal service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty for 20 years, 4 months, and 25 days
as indicated by his DD Form 214 of 31 July 1966, the date that he retired
from the Army.  Subsequent to his retirement, he was recalled to active
duty on 1 August 1967 serving until his release from active duty on 13
November 1970 for a total of 3 years, 3 months, and 13 days for that period
of service.  His total active service thus should show 23 years, 8 months,
and 8 days for retired pay purposes.

2.  His 13 November 1970 DD Form 214, however, is incorrect in that his
active service and inactive service are added to show a total of 26 years
and 23 days of active service; however, he did not have 26 years and 23
days of active federal service.  He had 23 years, 8 months, and 8 days of
active federal service and is being paid for that service.  His request to
correct his records to show that he be paid for 26 years and 23 days of
active federal service is not granted.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 13 November 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    12 November 1973.  However, the applicant did not
file within the 3-year statute of limitations and has not provided a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RW__  ___RA __  __EP ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ___ Raymond Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100573                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040923                                |
|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.       |136.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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