RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        04 AUGUST 2005
      DOCKET NUMBER:  AR20040008904


      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             |
|     |Ms. Gale J. Thomas                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Richard Dunbar                |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 a new Department of Defense Form 214
(Certificate of Release or Discharge from Active Duty) be issued to reflect
his “rank change from SGT [sergeant] E5 to SSG [staff sergeant] E6.”

2.  The applicant states that a new form was not received when he was
advanced on the retired list.

3.  The applicant provides a copy of his 1988 separation document, a copy
of the letter advancing him on the retired list to staff sergeant effective
12 January 1998, and a copy of a certificate of retirement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 April 2001, the date of notification of his advancement
on the Retired List.  The application submitted in this case is dated 14
October 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.  Records available to the Board indicate that the applicant initially
was promoted to pay grade E-6 in August 1976 but was subsequently reduced
to pay grade E-5 in October 1977 and to E-4 in July 1978.  By August 1982,
however, the applicant had once again been promoted to pay grade E-6.

4.  In January 1987 the applicant was reduced to pay grade E-5 as a result
of punishment under Article 15 of the Uniform Code of Military Justice for
sexual harassment of five women Soldiers.

5.  On 31 January 1988 the applicant was retired from active duty, in pay
grade E-5, and his name placed on the retired rolls the following day.  He
had 20 years and 19 days of active Federal service at the time of his
retirement.

6.  On 2 April 2001 the applicant was notified that the Army Grade
Determination Review Board had determined that the highest active duty
grade in which the applicant had served satisfactorily for the purpose of
computation of retired pay was staff sergeant, pay grade E-6.  He was
advanced on the retired list to pay grade E-6 effective 12 January 1998,
the date his active service plus his service on the retired list totaled 30
years.  He was issued a certificate of retirement reflecting that
information.

7.  Section 3964, title 10, United States Code entitled certain retired
members of the Army who are retired with fewer than 30 years of active
service, when such member’s active service plus service on the retired list
totals 30 years, to be advanced on the retired list to the highest grade
served on active duty satisfactorily.  For enlisted cases, the Army Grade
Determination Review Board makes the final grade determination on behalf of
the Secretary of the Army.

8.  Army Regulation 635-5 provides, in pertinent part, that a separation
report (DD Form 214) will be prepared at the conclusion of a period of
active Federal service.  An individual who is discharge from active Federal
service because of retirement is considered to have been released from
active Federal service and as such is issued a DD Form 214.  Once that
individual’s name is placed on the retired rolls they do not accumulate any
additional active Federal service and advancement on the retired list under
the provisions of Section 3964, title 10, United States Code a new
Department of Defense Form 214 is not issued, as they are not in an
“active” status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s 1988 separation document is correct and the fact that
he was subsequently advanced on the retired list to a higher grade than
that which he held at the time of his discharge from active duty is not a
basis to change his 1988 discharge from active duty.  A correction to his
separation document is not required and creates no error or injustice.

2.  In order to justify correction of a military record the applicant must
show, 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.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 April 2001; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on
1 April 2004.  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

__JA____  ___RD __  ___LD  __  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 Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040008904                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050804                                |
|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.                      |                                        |


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