RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            13 SEPTEMBER 2005
      DOCKET NUMBER:   AR20040010540


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley Powell                |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McCants              |     |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 he receive all back pay and allowances to
which he was entitled as a result of his promotion to the pay grade of E-4.

2.  The applicant states, in effect, that he was promoted from the pay
grade of   E-2 to the pay grade of E-4 and was never paid in the pay grade
of E-4.  He further states that he did not extend in the Army to resolve
the matter and that he enlisted in the Marine Corps as an E-4.

3.  The applicant provides no additional documents with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 October 1982.  The application submitted in this case is
dated 20 November 2004 and was received on 1 December 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 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.  He enlisted in the United States Army Reserve in Nashville, Tennessee,
under the delayed entry program (DEP) on 16 October 1979 for a period of
6 years.  He enlisted in the Regular Army on 19 October 1979 for a period
of 3 years, training as a subsistence supply specialist and was assigned to
the 101st Airborne Division.

4.  He completed his basic combat training at Fort Jackson, South Carolina,
and his advanced individual training at Fort Lee, Virginia, before being
assigned to Fort Campbell, Kentucky, on 12 February 1980.  He was advanced
to the pay grade of E-2 on 19 April 1980.

5.  On 3 July 1980, nonjudicial punishment was imposed against him for
multiple counts of failure to go to his place of duty.  His punishment
consisted of a reduction to the pay grade of E-1 (suspended for 60 days), a
forfeiture of pay and extra duty.  The suspended punishment was vacated on
10 July 1980.
6.  On 15 June 1981, nonjudicial punishment (NJP) was imposed against him
for failure to go to his place of duty and disobeying a lawful order from a
noncommissioned officer.  His punishment consisted of a reduction to the
pay grade of E-1 (suspended for 90 days), a forfeiture of pay, extra duty
and restriction.

7.  On 22 August 1981, he was transferred to Giessen, Germany, and the
records show he was again advanced to the pay grade of E-2 on 1 March 1982.
 There is no indication of his being advanced to the pay grade of E-3 in
the available records.

8.  However, on 6 April 1982, orders were published which advanced him to
the pay grade of E-4, effective 15 April 1982.

9.  On 15 October 1982, he was honorably released from active duty (REFRAD)
in the pay grade of E-4 due to completion of required service.  He had
served 2 years, 11 months and 27 days of total active service.  The
applicant authenticated his DD Form 214 at the time of separation with his
signature.

10.  The applicant’s pay records are not present in the available records
and there in no indication in the available records to show that the
applicant was not being paid in the appropriate pay grade at the time of
his REFRAD.  Additionally, there is no evidence in the available records to
show that he applied to the Defense Finance and Accounting Service (DFAS)
either prior to or subsequent to his discharge to resolve any pay issues
that he may have had.

DISCUSSION AND CONCLUSIONS:

1.  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 that requirement.

2.  The applicant’s contention that he was not being properly paid at the
time of his REFRAD has been noted.  However, he has failed to show through
the evidence submitted with his application or the evidence of record that
he was not being properly paid at the time of his separation.

3.  Additionally, he has provided no evidence to show that he attempted to
resolve the issue with the DFAS either prior to or subsequent to his
REFRAD.

4.  Therefore, lacking evidence to support his contention that he was not
being properly paid at the time of his REFRAD, there appears to be no basis
to grant his request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 October 1982; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 14 October 1985.  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

___SP __  ___RD __  ___JM __  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.




            _____Shirley Powell_________________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040010540                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/13                              |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |1982/10/15                              |
|DISCHARGE AUTHORITY     |AR 635-200, Ch 4                        |
|DISCHARGE REASON        |REFRAD                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |283/pay and allowances                  |
|1.128.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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