RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 October 2004
      DOCKET NUMBER:  AR2004103322


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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, in effect, correction of his record to show his
appointment to corporal (CPL) and promotion to sergeant (SGT) based on his
active duty promotion list status.

2.  The applicant states, in effect, that he was appointed to the rank of
CPL in 1985, while serving on active duty.  He also states that he was on
the promotion list to SGT and that a review of his record would support
restoration of his CPL rank and promotion to SGT in the Army National Guard
(ARNG).

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 January 1986.  The application submitted in this case
is dated
29 December 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 served on active duty in the Regular
Army for 2 years, 11 months and 28 days between 3 February 1983 and 31
January 1986.

4.  The applicant’s Personnel Qualification Record (PQR) Part I (DA Form
2), dated 30 December 1985, shows he held the rank of specialist/E-4 (SP4)
as of that date.  It further shows that as of September 1985, he was on the
promotion standing list to SGT with 591 points.

5.  Part II (DA Form 2-1) of the applicant’s PQR, which he last reviewed on

18 July 1985, shows he was promoted to the rank of SP4 on 1 December 1984,
and that this was the highest rank he attained while serving on active
duty.
6.  The applicant’s Military Personnel Records Jacket (MPRJ) is void of any
orders or documents indicating that the applicant was ever laterally
appointed to the rank of CPL.  Further, the MPRJ does not include the
applicant’s promotion packet and there are no orders or other documents on
file that would suggest he ever met the promotion cut-off score and/or that
he was promoted to SGT while still on active duty.

7.  On 31 January 1986, the applicant was honorably released from active
duty at the expiration of his term of service.  The DD Form 214 he was
issued at this time confirms he held the rank of SP4 on the date of his
separation.

8.  A Total Army Personnel Database (TAPDB) print-out on file shows the
applicant was accessed into the ARNG on 29 May 2002, in the rank of SP4.

9.  National Guard Regulation 600-200 prescribes the policies for the
management of ARNG enlisted soldiers.  Chapter 2 contains the policies for
enlistment in the ARNG.  Table 2-4 rule D states, in pertinent part, that
applicants with prior service in any component of the United States Armed
Forces who enlist more than 24 months after discharge will have their date
of rank established as the date of enlistment in the ARNG, if enlistment is
in the same grade held at discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that he was appointed a CPL and should be
promoted to SGT based on his promotion standing list status in the active
Army was carefully considered.  However, an insufficient evidentiary basis
has been found to support granting this requested relief.

2.  The evidence of record confirms the applicant was promoted to the rank
of SP4 on 1 December 1984 and that this is the highest rank he held while
on active duty.  The record is void of any indication that he was laterally
appointed to the rank of CPL or that he was ever promoted to the rank of
SGT while on active duty.

3.  Further, it is clear the applicant entered the ARNG more than 24 months
after his release from active duty.  As a result, his date of rank was
established as the date he entered the ARNG in accordance with the
applicable regulation.  Thus, there is an insufficient evidence to support
changing his ARNG rank at this time.
4.  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 and counsel
have failed to submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 January 1986.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 30 January 1989.  However, he 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

_FE ____  _LDS____  __RTD__  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.




            ____FRED EICHORN  ____
                    CHAIRPERSON


                                    INDEX

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


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