RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           4 January 2005
      DOCKET NUMBER:  AR2004106209


      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:

|     |Ms. Karen A. Heinz                |     |Chairperson          |
|     |Mr. Robert L. Duecaster           |     |Member               |
|     |Mr. James B. Gunlicks             |     |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, that the inaccurate rank listed on
his Army National Guard (ARNG) separation document (NGB Form 22) be
corrected.

2.  The applicant states, in effect, that he served on active duty from 17
March 1988 through 7 January 1992, at which time he was released from
active duty (REFRAD) under the Fiscal Year 1992 (FY 92) early transition
program.  He states he held the rank of specialist four (SP4) on the date
of his REFRAD.  He also states that after being separated from active duty
he entered the ARNG while attending college in Oklahoma.  He claims that he
relocated to his home in New York and requested that he be transferred to
an ARNG unit in his home State, but this request was not acted upon.  He
states that he later received his discharge papers from the Oklahoma ARNG
and his rank was erroneously listed as private/E-2 (PV2).

3.  The applicant provides a self-authored statement, active duty
separation document (DD Form 214) and ARNG separation document (NGB Form
22) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 4 November 1992.  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’s record confirms he enlisted in the Regular Army and
entered active duty on 17 March 1988.  He served on active duty for 3
years, 9 months and 21 days until being honorably REFRAD on 7 January 1992.
 The DD Form 214 he was issued upon his separation confirms he held the
rank of SP4 on the date he was REFRAD and that he had attained that rank on
1 September 1989.
4.  On 8 January 1992, the applicant enlisted in the Oklahoma ARNG.  His
record shows that on 12 July 1992, he received nonjudicial punishment (NJP)
under the provisions of Title 44 of the Oklahoma Code of Military Justice,
Section 2301
(44 OCMJ 2301).  The NJP action was based on his being absent without leave
(AWOL), from 13 June through 14 June 1992.  His punishment for this offense
included a reduction to private first class (PFC).

5.  On 1 August 1992, the applicant received NJP under the provisions of
44 OCMJ 2301, for being AWOL from 11 through 12 July 1992.  His punishment
for this offense included a reduction to PV2.  This reduction was
authorized in Battery A, 1st Battalion, 160th Field Artillery, Oklahoma
ARNG Orders Number 10-1, which directed his reduction to PV2, effective 1
August 1992.

6.  On 4 November 1992, the applicant was discharged from the Oklahoma ARNG
under the provisions of National Guard Regulation 600-200, by reason of
unsatisfactory performance.  The NGB Form 22 he was issued at this time
confirms he held the rank of PV2 and that his service in the ARNG was
characterized as general, under honorable conditions.  Upon his discharge
from the ARNG, he was transferred to the United States Army Reserve (USAR)
Control Group, St. Louis, Missouri.

7.  On 9 May 1995, the applicant’s honorable discharge from the USAR was
directed in United States Army Reserve Personnel Center Orders Number
D-05-539877.  These orders confirm he held the rank of PV2 at the time of
his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that a typographical error resulted in his
rank being incorrectly listed as PV2 on his NGB Form 22 and USAR discharge
orders was carefully considered.  However, there is insufficient evidence
to support this claim.

2.  The evidence of record confirms the applicant held the rank of SP4 upon
his honorable REFRAD on 7 January 1992, as is properly reflected on his DD
Form 214.  However, it is also clear that while serving in the Oklahoma
ARNG, he was reduced to PFC for cause on 12 July 1992 and to PV2 for cause
on 1 August 1992.  As a result, the PV2 rank listed on his 4 November 1992
NGB Form 22 and his 9 May 1995 USAR discharge orders is correct and clearly
not the result of a typographical error.
3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 9 May 1995.  Therefore, the time for
him to file request for correction of any error or injustice expired on 8
May 1998. 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

___JBG_  __RLD___  __KAH__  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.




            ____Karen A. Heinz _____
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004106209                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005-01-04                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1995/05/09                              |
|DISCHARGE AUTHORITY     |AR 135-178                              |
|DISCHARGE REASON        |Completion of MSO                       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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