RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           9 November 2004
      DOCKET NUMBER:  AR2004105989


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Mark D. Manning               |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 that his rank of Corporal, E-4 be restored.

2.  The applicant states that, when the Army Discharge Review Board (ADRB)
upgraded his discharge, his rank was changed from E-1 to E-3.  He feels it
should have been upgraded back to E-4.

3.  The applicant provides no supporting evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred       on or about 23 July 1982 (the date the ADRB upgraded his
discharge).  The application submitted in this case is dated 23 March 2004.


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 enlisted in the Regular Army on 7 July 1971.  He was
promoted to Specialist Four, E-4 on 2 June 1972 and later laterally
appointed to Corporal.  He was honorably discharged on 20 July 1972 for the
purpose of immediately reenlisting on 21 July 1972.  He was honorably
discharged once again on            22 September 1975 for the purpose of
immediately reenlisting on 23 September 1975.

4.  On 16 March 1976, the applicant accepted nonjudicial punishment (NJP)
under Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a
lawful order by going to sleep during his tour of duty as charge of
quarters.  His punishment was a reduction to pay grade E-3 (suspended for
90 days), a forfeiture of seven days pay, and seven days extra duty.

5.  On 1 April 1976, the suspended reduction was vacated and the applicant
was reduced to Private First Class, E-3 with a date of rank of 16 March
1976.

6.  On 3 May 1976, the applicant accepted NJP under Article 15, UCMJ again.
 He was absent without leave (AWOL) for one day in June 1976.  In June
1976, his commander recommended him for separation for unfitness.  His
commander had made several errors in his recommendation, stating the
applicant received four Article 15s and that he had received a summary
court-martial for AWOL.  The court-martial had been received during the
applicant's first enlistment.  The appropriate commander approved the
recommendation and the applicant was discharged on 30 July 1976, in pay
grade E-1, with a discharge under other than honorable conditions.

7.  The applicant applied to the ADRB for an upgrade of his discharge.  On
     23 July 1982, the ADRB determined that the substantive errors in the
commander's recommendation presented a prejudicial circumstance that
directly resulted in the applicant's characterization of service.  The ADRB
voted to upgrade the applicant's discharge to a general discharge under
honorable conditions.

8.  The applicant's discharge was so upgraded and a new DD Form 214
(Certificate of Release or Discharge from Active Duty) was prepared which
reflects his upgraded discharge and his rank and grade as Private First
Class,    E-3.  Item 12h (Effective Date of Pay Grade) erroneously reflects
16 March 1976.

9.  Army Regulation 635-5 prescribes the separation documents prepared for
soldiers upon retirement, discharge, or release from active military
service or control of the Army.  It establishes standardized policy for the
preparation of the DD Form 214.  In pertinent part 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.

DISCUSSION AND CONCLUSIONS:

1.  When the ADRB upgraded the applicant's discharge, his rank and grade
were properly restored to the last rank and grade he held while on active
duty.  Although he had been promoted to pay grade E-4 in June 1972 and had
been later laterally appointed to Corporal, he had been reduced to Private
First Class, E-3 effective 1 April 1976.  It is noted that his DD Form 214
erroneously shows his date of rank rather than his effective date of pay
grade in item 12h.

2.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on or about 23 July 1982, the date the
ADRB upgraded his discharge; therefore, the time for the applicant to file
a request for correction of any error or injustice expired on or about 22
July 1985.  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 FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mdm___  __lds__   ___lgh__  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.




            __Mark D. Manning_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004105989                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041109                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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