RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:             JUNE 24, 2004
      DOCKET NUMBER:     AR2004099963


      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. Luis Almodova                 |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Stanley Kelley                |     |Member               |
|     |Mr. Hubert Fry                    |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      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 the time he served as a cadet
at the United States Military Academy be added to his DD Form 214,
Certificate of Release or Discharge from Active Duty.

2.  The applicant states, in effect, that he was on active duty as a cadet
at the United States Military Academy from 2 July 1990 to 28 May 1994 when
he graduated and received a commission.  His DD Form 214 does not reflect
his active duty service as a cadet.

3.  The applicant provides a copy of his DD Form 214; a copy of Orders 161-
001, published by TAEGU Transition Center, 19th TAACOM, dated 10 June 1999;
a statement addressed To Whom It May Concern, dated 21 October 2003; and a
copy of his United States Military Academy Transcript of Academic Record
dated 23 June 1994.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error, which
occurred on 30 June 1999.  The application submitted in this case is dated
29 October 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 statement addressed To Whom It May Concern, dated 21 October 2003,
which the applicant provided with his application, prepared by the Office
of the Dean, United States Military Academy, West Point, New York,
certifies that he was a cadet for the period from 2 July 1990 through his
graduation date, 28 May 1994.

4.  The Transcript of Academic Record dated 23 June 1994, which the
applicant provided, shows that he entered the United States Military
Academy on 2 July 1990 and he graduated on 28 May 1994 with a Bachelor of
Science Degree with a major in History (International/Strategic).

5.  The DD Form 214 shows that the applicant entered active duty as a
Regular Army Commissioned Officer on 28 May 1994 and was honorably
discharged
under the provisions of Army Regulation 600-8-24, paragraph 3-5, for
miscellaneous/general reasons, on 30 June 1999.  On the date he was
discharged, the applicant had completed 5 years, 1 month, and 3 days,
active military service.

6.  Paragraph 010102 D.4. Department of Defense Financial Management
Regulation (DoDFMR), Volume 7A, states that "Service as a cadet or
midshipman at a military academy is always creditable service for an
enlisted member.  See Table 1-1 to determine whether such service is
creditable for commissioned and warrant officers."

7.  Table 1-1, DoDFMR, Volume 7A, Table 1-1, Service As Cadet or Midshipman
– Officers, shows that, When an officer has had service as a cadet or
midshipman in any of the military academies to which appointed and held no
concurrent enlisted and/or Reserve status, then the period involved is not
creditable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was a cadet at the United States Military Academy from 2
July 1990 through 28 May 1994.  On his graduation date, the applicant was
commissioned as an officer in the Regular Army.  He served on active duty
until 30 June 1999 when he was discharged from the Army for miscellaneous/
general reasons.

2.  There is no evidence, and the applicant provided none to show, that he
held concurrent enlisted and/or Reserve status at the time he was a cadet
at the United States Military Academy; therefore, this service is not
creditable and the service will not be added to his DD Form 214.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 June 1999; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 29 June 2002.  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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

jh______  hf  ______  sk______  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 Hise_____
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR2004099963                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040624                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  303  |129.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |