RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 20 October 2005
DOCKET NUMBER: AR20050001962
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 |
| |Ms. Wanda L. Waller | |Analyst |
The following members, a quorum, were present:
| |Mr. John Meixell | |Chairperson |
| |Mr. James Gunlicks | |Member |
| |Ms. Jeanette McCants | |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 narrative reason for separation be
changed to "length of service.”
2. The applicant does not provide an explanation.
3. The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which
occurred on
4 May 1995. The application submitted in this case is dated 26 January
2005.
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 on 27 March 1970. He remained on active duty
through continuous reenlistments until he retired in the rank of command
sergeant major on 4 May 1995 by reason of permanent disability. The
Physical Evaluation Board (PEB) proceedings are not available.
4. Item 25 (Separation Authority) on the applicant’s DD Form 214 shows the
entry, "AR [Army Regulation] 635-40, PARA [Paragraph] 4-24B(1)." Item 26
(Separation Code) on his DD Form 214 shows the entry, "SFJ." Item 28
(Narrative Reason for Separation) on his DD Form 214 shows the entry,
"DISABILITY, PERMANENT."
5. Army Regulation 635-40 governs the evaluation for physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability. The unfitness is of such a degree that a Soldier is
unable to perform the duties of his office, grade, rank or rating in such a
way as to reasonably fulfill the purposes of his employment on active duty.
6. Army Regulation 635-5-1 (Separation Program Designator Codes)
prescribes the specific authorities (regulatory, statutory, or other
directives), the reasons for the separation of members from active military
service, and the separation program designators to be used for these stated
reasons. The regulation states the reason for discharge based on
separation code “SFJ” is “Disability, Permanent” and the regulatory
authority is Army Regulation 635-40, paragraph 4-24b(1).
DISCUSSION AND CONCLUSIONS:
1. Although the PEB proceedings are not available, the narrative reason
for separation used in the applicant’s case appears to be correct and
applied in accordance with the applicable regulations.
2. Records show the applicant should have discovered the alleged error now
under consideration on 4 May 1995; therefore, the time for the applicant to
file a request for correction of any error expired on 3 May 1998. 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
JM_____ JG______ JM_____ 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.
___John Meixell_______
CHAIRPERSON
INDEX
|CASE ID |AR20050001962 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20051020 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. |110.0200 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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