RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          22 July 2004
      DOCKET NUMBER:  AR2004100281


      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:

|     |Mr. Walter T. Morrison            |     |Chairperson          |
|     |Ms. Barbara J. Ellis              |     |Member               |
|     |Mr. Eric N. Anderson              |     |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 DD Form 214 be corrected to reflect his
rank as a colonel/0-6.

2.  The applicant states that he was promoted to the rank of colonel on
16 October 1978 and that his retirement orders were corrected accordingly.

3.  The applicant provides a copy of his DD Form 214, his promotion orders
to the rank of colonel, a DA Form 209 and an amended order.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 February 1978.  The application submitted in this case is
dated 22 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.  He initially enlisted at Carlisle Barracks, Pennsylvania, in the
Enlisted Reserve Corps (ERC), now known as the United States Army Reserve
(USAR) on 15 June 1948 and served until he was honorably discharged on 28
August 1949, to enlist in the Regular Army.  He enlisted in the Regular
Army on 29 August 1949 and served until he was honorably discharged in the
rank of sergeant on 13 December 1952.  On 16 December 1952, he again
enlisted in the ERC and was honorably discharged on 15 November 1954, to
accept a USAR commission.

4.  He was commissioned as a USAR second lieutenant on 16 November 1954,
was promoted to the rank of first lieutenant on 15 November 1957 and to the
rank of captain on 21 October 1959.  He applied for and was ordered to
active duty on 3 January 1963.

5.  He remained on active duty and was promoted to the rank of major on
13 September 1965 and to the rank of lieutenant colonel (LTC) on 18 October
1968.

6.  On 4 February 1977, the applicant was notified that he had reached his
maximum allowable years of active Federal service and must be released from
active duty (REFRAD) or request retirement no later than 28 February 1978.

7.  On 19 October 1977, he submitted his voluntary request for retirement
on 28 February 1978.  His request was approved and Letter Order S225-16 was
published by the Military Personnel Center (MILPERCEN) announcing his
placement on the Retired List, effective 1 March 1978, in the rank of LTC.

8.  On 9 November 1977, the applicant was notified that a Reserve
Components Selection Board had convened and that he had not been selected
for promotion to the rank of colonel because his records did not reveal
that he had completed the military education requirements by the date the
board had convened.

9.  On 28 February 1978, he was honorably released from active duty
(REFRAD) in the rank of LTC and was transferred to the USAR Control Group
(Retired) in that grade, effective 1 March 1978.  He had served 20 years, 1
month and 11 days of total active service and had 29 years, 8 months and 13
days of service for pay purposes.

10.  On 20 September 1978, he was notified that he was promoted to the rank
of colonel in the USAR, effective 16 October 1978.

11.  On 29 July 1987, the applicant was notified that his pre-mobilization
orders (also known as hip-pocket orders) had been amended to reflect his
rank of colonel.

12.  Army Regulation 635-5 serves as the authority for the preparation of
the DD Form 214.  It provides, in pertinent part, that the DD Form 214 is
prepared to reflect an individual's service as of the date of REFRAD or
discharge from active duty.  Subsequent events that occur after the
effective date of REFRAD or discharge that have no bearing on events that
occurred during the period covered by the DD Form 214 will not be added or
changed on the DD Form 214.




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 this requirement.

2.  Although the applicant was promoted to the rank of colonel in the USAR,
he did not serve on active duty in that rank and thus is not entitled to
either be retired in that rank or to have his DD Form 214 corrected to
reflect that rank.

3.  The applicant's contention that his retirement orders were amended to
reflect his rank of colonel has been noted and appears to be without merit.
 His pre-mobilization or hip-pocket orders were amended to reflect his USAR
rank of colonel; however, the available evidence of record fails to show
that his retirement orders were ever amended.

4.  The evidence of record shows that he was properly retired in the rank
of LTC, the highest rank in which he served on active duty.  Accordingly
there is no basis to correct his DD Form 214 as requested.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 February 1978; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 February 1981.  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

__wtm___  __bje___  __ena___  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.



                                  Walter T. Morrison
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100281                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040722                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |189/CORR 214                            |
|1.110.0000              |                                        |
|2.129.0000              |302/PAY GRADE                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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