RECORD OF PROCEEDINGS


      IN THE CASE OF:



      BOARD DATE:           1 July 2004
      DOCKET NUMBER:   AR2004100264


      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. G. E. Vandenberg              |     |Analyst              |


  The following members, a quorum, were present:

|     |Ms. Lana E. McGlynn               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. John T. Meixell               |     |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 that his date of discharge be changed to 22 or
23 December 1975 and that the money that was recouped from his retired pay
be repaid.

2.  The applicant states, in effect, that he was previously unable to
provide documentation to show that he was not discharged October 1975 but
was still on active duty through 22 December 1975.

3.  The applicant provides copies of his DD Form 214 (Report of
Separation), Headquarters 7th Army Special Orders Number 342, a DA Form 137
(Installation Clearance Record), a DD Form 1482 (Military Air Command (MAC)
Transportation Authorization), a DA Form 4240 (Data for Payment of Retired
Army Personnel), and a 17 June 1977 notification of overpayment,

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 23 October 1975, the date of issuance of his DD Form 214.  The
application submitted in this case is dated 19 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's record shows he entered active duty on 20 June 1972,
completed training, and was assigned to the 1st Battalion, 35th Armored
Regiment in Germany.

4.  On 31 May 1974, the motorcycle he was driving was sideswiped by a car
resulting in significant injuries to the applicant.  The accident was
determined to have been in the line of duty.

5.  A Physical Evaluation Board found the applicant unfit for duty by
reason of a physical disability and placed him on the Temporary Disability
Retired List (TDRL) with a 40 percent disability evaluation.

6.  U. S. Army Military Personnel Center, Letter Orders Number D9-285,
dated 28 September 1975 states that the applicant would be released from
active duty on 23 October 1975 and placed on the TDRL effective 24 October
1975.
7.  Headquarters, United States Army, Europe and 7th Army, Heidelberg,
Germany, Special Orders Number 342, dated 8 December 1975, states that the
applicant was to report to the transfer point at Fort Dix, New Jersey on
20 December 1975 for separation processing.  It states that the applicant
was placed on the TDRL on 24 October 1975.  A copy of this order attached
to the applicant's medical record has an additional pen and ink notation
across the front stating "separated 23 October 1975".

8.  An undated DA Form 137 (Installation Clearance Record) states that the
applicant was to depart at 0600 hours, 22 December 1975 for Fort Dix, New
Jersey.  There are no dates to determine when the applicant cleared the
station.

9.  A DD Form 1482 (Military Air Command (MAC) Transportation
Authorization), issued 19 December 1975 authorized the applicant a military
flight departing 22 December 1975.

10.  A DA Form 4240 (Data for Payment of Retired Army Personnel), dated
23 December 1975, indicates that he applicant declined to participate in
the Survivor Benefits Plan.

11.  The applicant's DD Form 214 states that he was medically retired
effective 23 October 1975, with 3 years, 4 months, and 29 days of service.
The applicant signed the DD Form 214 and initialed that he requested a
copy.

12.  The applicant was removed from the TDRL and permanently retired
effective 1 June 1977.

13.  On 17 June 1977, the Chief of Pay Service, Army Finance And Accounting
Center (USAFAC), Indianapolis, Indiana, on a USAFAC Form 20-74 (Request for
Information), notified the applicant that he was not shown to have been on
active duty from 24 October 1975 through 30 December 1975.  The Chief
stated that the military pay voucher (MPV) for December 1975 was for 12 and
1/2 days of accrued leave, travel, and a Social Security tax adjustment.
The Chief noted that the applicant had been overpaid $456.58 and that this
amount would be recouped from his retired pay.

DISCUSSION AND CONCLUSIONS:

1.  There is no documentation that the orders transferring the applicant to
the TDRL were modified to retain him on active duty through December 1975.

2.  The applicant has failed to provide any documentation to clearly show
he was on active duty for any period between 24 October 1975 and
23 December 1975.

3.  The fact that the 8 December 1975 7th Army Special Orders Number 342
show that he was released from active duty and placed on the TDRL effective
24 October 1975 indicates that the date on his DD Form 214 is correct.

4.  Records show the applicant should have discovered the error or
injustice now under consideration on 23 October 1975; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 22 October 1978.  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 file in this case.


BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LEM __  ___LDS__  __JTM__  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 the 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 insufficient
evidence to show 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.





            __   Lana E. McGlynn_______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004100264                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040701                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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