RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 November 2005
      DOCKET NUMBER:  AR20050002762


      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. Howard D. Thomas              |     |Chairperson          |
|     |Mr. John P. Infante               |     |Member               |
|     |Ms. Carmen Duncan                 |     |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:

      a.  he be granted constructive reinstatement as a Staff Sergeant
(SSG)  on active duty for the period 1 November 1974 to either 22 September
1977 or   1 November 1977 with all pay and allowances, including Parachute
Hazardous Duty pay;

      b.  constructive retirement in the rank and grade of Major (MAJ), O-4
on either 22 September 1977 or 1 November 1977 and accrual of authorized O-
4 retired pay from that date to the present;

      c.  authorization and award of any medal, ribbon, unit citation, or
combat and special skill badge for which he would have qualified for during
the period between 1 November 1974 and either 22 September 1977 or 1
November 1977, including the Master Parachutist Badge and the second award
of the Army Good Conduct Medal;

      d.  award of whatever differential amount of pay should have accrued
to him as a result of the differences in totals between his actual retired
pay status and:

            1.  the constructive total of pay which he should have accrued
during the 3 years of active duty as a SSG; and

            2.  the subsequent pay, which he should have accrued, based on
a considerably earlier date of O-4 retired pay status.

2.  The applicant states he should have been permitted to reenlist in the
rank of SSG after his relief from active duty as a MAJ (due to nonselection
for promotion to permanent MAJ).  One of the criteria to allow for such
enlistment stated, "If the affected person had, at any time during his
military career, been the recipient of the Medal of Honor, the
Distinguished Service Cross, the Silver Star, or an equivalent medal
awarded by one of the other services."  He had been recommended for award
of the Silver Star.  It was downgraded to the Bronze Star Medal with "V"
device; however, on 11 February 2002 the Army Awards Board awarded him the
Silver Star.

3.  The applicant states that, had he been the recipient of the Silver
Star, he could have been allowed to reenlist for active duty for 3 years.
Then he could have served as an enlisted person until he had reached a
total of 20 years of active duty, which would have occurred on or about 22
September 1977.  He would have automatically been eligible for retirement
as a MAJ.  However, he was not allowed to reenlist and therefore was forced
to involuntarily retire.  He completed 30 years of combined active duty and
retired service on 22 September 1983 and, at that point, he was promoted
(under a different law) to MAJ and thenceforward drew O-4 pay.

4.  The applicant states he also believes that, had he been allowed to
enlist and remain on active duty for 3 years, he would have received
airborne pay.  He was on airborne status until 30 October 1974.  In
addition, since he would have served an additional 3 years of enlisted
service, he would certainly have received a second award of the Army Good
Conduct Medal.

5.  The applicant provides the documents listed as Tabs A through K at
enclosure two to his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not respond within the given time frame.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 31 October 1974.  The application submitted in this case
is dated    25 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 limitations 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 22 September 1953.  His
DD Form 214 for this period of service shows he was released from active
duty on  21 September 1956 in the rank and grade of Corporal, E-4 for the
purpose of attending the U. S. Military Academy.

4.  The applicant's DA Form 66 (Officer Qualification Record) and his DA
Form 2339 (Application for Voluntary Retirement) show he was released from
active duty on 2 July 1956 for the purpose of attending the Academy.

5.  The applicant had been transferred to the Enlisted Reserve.  He
graduated from the Academy and entered active duty on 8 June 1960.

6.  On 14 May 1974, the applicant was notified he had been nonselected for
permanent promotion to MAJ for the second time.  He was required to be
discharged no later than the first day of the seventh month after the
Secretary    of the Army approved the promotion board's report.  The
Secretary approved   the board's report on 22 April 1974.  He would be
honorably discharged on         1 November 1974 with entitlement to
severance pay.

7.  In June 1974, the applicant applied for appointment as a warrant
officer and concurrent call to active duty.  Due to the many applications
for relatively few vacancies, and a determination he was not the best
qualified as related to the requirements of the specialties in which he
requested appointment, his application was disapproved.

8.  On an unknown date, the applicant requested an enlisted grade
determination for the purpose of resigning his Regular Army commission to
accept reenlistment and immediate retirement as an enlisted man.  His
request was originally not favorably considered as Title 10, U. S. Code,
section 3303 (IV) prohibited the enlistment/reenlistment of Regular Army
commissioned officers who were involuntarily discharged from their Regular
Army status.

9.  The U. S. Army Enlistment Eligibility Activity noted that, by statute,
any former Regular Army enlisted member who had been separated from his
Regular Army enlisted status for the purpose of immediately accepting
appointment as a Reserve or Army of the United States officer on active
duty was entitled to be reenlisted in the Regular Army upon release from
officer status.  Similar statutory authority did not exist for Regular Army
commissioned officers.  An exception could be granted to those applicants
who at any time in their military service had been the recipients of the
Medal of Honor, the Distinguished Service Cross, the Silver Star, or an
equivalent medal awarded by one of the other Armed Forces.  The applicant
was not in any of those categories; however, an exception was authorized
strictly for enlistment for retirement purposes only.  The U. S. Army
Enlistment Eligibility Activity authorized him to enlist in grade E-6 for
retirement purposes only.

10.  On 22 August 1974, the applicant requested resignation to be effective
         30 October 1974.

11.  On 30 October 1974, the applicant was discharged from active duty in
the rank of Major.  His DD Form 214 for the period ending 30 October 1974
shows he completed 17 years, 2 months, and 3 days of creditable active
service.
12.  On 31 October 1974, the applicant enlisted in the Regular Army for 3
years in the rank of SSG.

13.  On 31 October 1974, the applicant was released from active duty in the
rank of SSG for the purpose of retirement.  His DD Form 214 for the period
ending      31 October 1974 shows he completed 21 years, 1 month, and 10
days of creditable active service.

14.  U. S. Total Army Personnel Command Permanent Orders Number
42-25 dated 11 February 2002 awarded the applicant the Silver Star for
gallantry in action against the enemy on 30 January 1968 in lieu of the
Bronze Star Medal with "V" device for heroism on 30 January 1968.

15.  Army Regulation 601-280 (Army Reenlistment Program), in effect at the
time, provided that a Soldier met the grade eligibility for reenlistment
provided he or she did not exceed the retention ineligibility point
outlined in table 2-1.  Table 2-1 stated the retention ineligibility point
for E-6s was 20 years of total active Federal service.

16.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel)
states service as a U. S. Military Academy cadet is creditable for
retirement.  (Service as a cadet is not creditable for retirement as a
commissioned officer.)

17.  Title 10, U. S. Code, section 3961(b) states that, unless entitled to
a higher retired grade under some other provision of law, a Regular or
Reserve of the Army not covered by section 3961(a) (concerning the retired
grade of a Regular commissioned officer) who retires other than for
physical disability retires in the Regular or Reserve grade that he holds
on the date of his retirement.

18.  Title 10, U. S. Code, section 3964 states an enlisted member of the
Regular Army is entitled, when his active service plus his service on the
retired list totals 30 years, to be advanced on the retired list to the
highest grade in which he served satisfactorily on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended he should have been permitted to reenlist in
the rank of SSG after his relief from active duty as a MAJ.  The evidence
of record shows he was permitted to reenlist in the rank of SSG after his
relief from active duty as a MAJ.  His enlistment was allowed as an
exception to policy because, although he had prior enlisted service,
reversion to an enlisted status was authorized only for Reserve or Army of
the United States officers.  The applicant was a Regular Army officer.
2.  The applicant contended that, had he been the recipient of the Silver
Star, he could have been allowed to reenlist for active duty for 3 years of
active duty.  However, he was allowed to enlist for 3 years, even without
the Silver Star, as an exception to policy.  It is acknowledged his Bronze
Star Medal with "V" device was later upgraded to the Silver Star.  Even if
he had been awarded the Silver Star prior to his release from active duty,
however, he still could not have enlisted for 3 years as a SSG, without the
caveat that he immediately retire, because of the retention ineligibility
point issue.

3.  Although the applicant did not have 20 years of AFS to retire as a
commissioned officer, once he enlisted his service as a USMA cadet was
creditable towards an enlisted retirement.  Therefore, when he enlisted on
       31 October 1974, he had over 21 years of AFS.

4.  It appears the U. S. Army Enlistment Eligibility Activity made a
reasonable determination that the applicant's enlistment grade should be
SSG, E-6 and not a higher grade.  Although he had served as a commissioned
officer, the highest enlisted rank and grade he had previously held was
Corporal, E-4.  Commissioned officer skills and experience do not
automatically translate into the skills and experience necessary to be a
good noncommissioned officer.  The retention ineligibility point for an E-6
was 20 years.  It appears to have been a reasonable requirement that he be
allowed to reenlist only if he agreed to immediately retire.

5.  Because the applicant was in an enlisted status, he could not have
retired as a MAJ.  Statutory authority provided that he would retire in the
grade he held on the date of his retirement (i.e, SSG, E-6).  He could not
have been advanced to MAJ until the date his active service plus his time
on the retired list totaled        30 years, as he acknowledges was done in
September 1983.

6.  Because the evidence shows the applicant was allowed to enlist and was
properly retired on 1 November 1974 in the rank and grade of SSG, E-6,
there is no basis for granting the additional relief requested.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1974; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         30 October 1977.  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

__hdt___  __jpi___  __cd____  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.




                                  ___Howard D. Thomas___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002762                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051103                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]