RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 June 2004
      DOCKET NUMBER:   AR2004100196


      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. Beverly A. Young              |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Jose Martinez                 |     |Member               |
|     |Mr. Lawrence Foster               |     |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 correction of his DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) to show he was separated
from the service on 7 October 1970.

2.  The applicant states that his DD Form 214 inaccurately reflects the
date he was processed out of the service.  He states that his statement of
service on his DD Form 214 corresponds with the date he out-processed from
his overseas unit, but not when he was out-processed from the service.  He
also states that he out-processed from the service on 7 October 1970 at
Fort Lewis, Washington.  He states that he started his out-processing
paperwork at the overseas unit on 27 September 1970.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 27 September 1970.  The application submitted in this case is
dated 31 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 applicant was inducted into the Army on 8 October 1968.  He
completed basic and advanced individual training (AIT) and was awarded
military occupational specialty 05C (Radio Teletype Operator).  On 5
October 1969, he was assigned to the 833rd Ordnance Company in Korea.

4.  Item 38 (Record of Assignments) on the applicant's DA Form 20 (Enlisted
Qualification Record) shows he departed Korea on 26 September 1970.

5.  The applicant's personnel records contain a DA Form 2376 (Notification
to State Adjutants General Release from Active Duty of Obligated Reservist)
which shows him assigned to Fort Lewis on 27 September 1970.  This document
also shows his release from active duty date as 27 September 1970 and his
arrival date to home as 7 October 1970.


6.  The applicant was released from active duty on 27 September 1970 from
Fort Lewis, Washington.  His DD Form 214 shows the effective date of
separation as 27 September 1970 in item 11d (Effective Date).

7.  His personnel records contain Headquarters, U.S. Army Personnel Center,
Fort Lewis, Washington Special Orders Number 270 dated 27 September 1970
which shows he was released from active duty with an effective date of
27 September 1970.

8.  Army Regulation 635-5 (Separation Documents) governs the preparation of
the DD Form 214.  It states that the DD Form 214 is a synopsis of the
soldier's most recent period of continuous active duty.  It provides a
brief, clear-cut record of active Army service at the time of release from
active duty, retirement or discharge.  In the version in effect at the
time, it directed that the date separation was accomplished would be
entered in item 11(d) of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was inducted in the Army in October 1968.
Upon completion of AIT, he was assigned to Korea.

2.  The evidence of record shows the applicant departed Korea on 26
September 1970.

3.  Special orders and other documents show the applicant was released from
active duty on 27 September 1970.  As a result, his DD Form 214 was
prepared to properly reflect the effective date of his separation as 27
September 1970.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 September 1970; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 26 September 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 RELIEF

________  ________  ________  GRANT FORMAL HEARING

JS______  JM______  LF______  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.




            John Slone____________
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100196                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040622                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |