RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            14 April 2005
      DOCKET NUMBER:  AR20040004398


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Vick                 |     |Chairperson          |
|     |Ms. Ann M. Campbell               |     |Member               |
|     |Ms. Margaret V. Thompson          |     |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, in effect, that his separation document (DD
Form 214) be corrected to show his rank and pay grade as specialist/E-4
(SPC/E-4).

2.  The applicant states, in effect, that he was promoted to the pay grade
E-4, but is was not reflected on his DD Form 214 or identification (ID)
card.

3.  The applicant provides a copy of his separation document and his ID
card in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 15 June 1978.  The application submitted in this case is
dated
13 July 2004.

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 limitations 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’s record shows he enlisted in the Regular Army and
entered active duty on 14 April 1976.  He was trained in, awarded and
served in military occupational specialty (MOS) 16R (Air Defense Artillery
Short Range Gunnery Crewman).

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Appointments and Reductions), that on 1 January 1978, he was
promoted to private first class/E-3 (PFC/E-3), and that this is the highest
rank and pay grade he attained while serving on active duty.

5.  The applicant’s Military personnel Records Jacket (MPRJ) is void of any
orders or other documents that indicate the applicant was ever recommended
for, or promoted to a rank and pay grade above PFC/E-3 during his active
duty tenure.

6.  On 1 June 1978, the Department of the Army (DA) Chief, Disability
Section, Retirement Branch, announced the applicant’s disability
retirement.  DA Orders Number D107-10, dated 1 June 1978, authorized the
applicant’s release from active duty for the purpose of disability
retirement on 15 June 1978 and his placement on the Retired List on 16 June
1978.  These orders also assigned the applicant the retired grade of PFC/E-
3.

7.  A Data for Retired Pay (DA Form 3713), dated 1 June 1978, which was
prepared on the applicant during his retirement processing, is on file in
his
MPRJ.  This document contains the entry PFC in Item 2 (Active Duty Grade),
Item 3 (Retired Grade), Item 8 (Highest Grade Held) and Item 10 (Retired
Pay Grade).

8.  On 15 June 1978, the applicant was released from active duty (REFRAD),
for the purpose of disability retirement.  The DD Form 214 he was issued on
that date confirms, in Item 6a (Grade, Rate or Rank) and Item 6b (Pay
Grade), that he held the rank and pay grade of PFC/E-3 on the date of his
separation.

9.  The applicant provides a copy of his ID card and separation document.
Both these documents list his rank and pay grade as PFC/E-3.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was promoted to SPC/E-4 prior to his
separation and retirement was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms that the applicant held the rank and
pay grade of PFC/E-3 on the date of his REFRAD, and that he was placed on
the Retired List in that rank and pay grade.  His MPRJ contains a DA Form
3713 that shows he held the rank and pay grade of PFC/E-3 during his
retirement processing, and that this is the highest rank and pay grade he
attained while serving on active duty.  This document and the retirement
orders issued by DA also confirm that his authorized retired grade was
established as PFC/E-3.

3.  In view of the facts of this case, there is an insufficient evidentiary
basis to support granting the requested relief.  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 this requirement.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 June 1978.  Therefore, the time for
him file a request for correction of any error or injustice expired on 14
June 1981.  However, he failed to 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

___AMC_  __MVT __  ___JEV _  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.




            ____James E. Vick _____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004398                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/14                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1978/06/15                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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