RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 November 2005
      DOCKET NUMBER:  AR20050002993


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane Armstrong               |     |Member               |
|     |Ms. Delia Trimble                 |     |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 discharge date be corrected to reflect
his time served to include his authorized extended leave.

2.  The applicant states he was involved in a car accident while on
extended leave awaiting discharge from the Army.  He alleges after his
mother notified the Army he was hospitalized as a result of the accident,
the Army back-dated his discharge to take effect before the accident.

3.  The applicant provides four letters of support and a DA Form 31
(Request and Authority for Leave).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 28 November 1977.  The application submitted in this case is
dated 25 February 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 U.S. Army Reserve under the delayed entry
program on 17 January 1975 for a period of 6 years.  He enlisted in the
Regular Army on 28 January 1975 for a period of 2 years.  He completed the
required training and was assigned to Germany as a redeye weapons system
repairman.

4.  On 11 November 1976, the applicant was convicted by a special court-
martial of committing aggravated assault with a means likely to produce
grievous bodily harm.  He was sentenced to a bad conduct discharge and
confinement at hard labor for 2 months.

5.  On 4 February 1977, the applicant submitted a DA Form 31 requesting an
indefinite period of excess leave beginning on 7 February 1977.

6.  The Army Court of Military Review affirmed only the lesser included
offense of assault and battery and only the portion of the sentence to
confinement at hard labor for 2 months on 19 July 1977.

7.  Headquarters, 7th Infantry Division and Fort Ord Special Court-Martial
Order Number 85 dated 19 September 1977 announced the affirmed finding of
guilty of the charge of assault and battery and the portion of the sentence
to confinement at hard labor for 2 months and amended the sentence as
modified to be executed.  The orders indicated the confinement at hard
labor had been served.

8.  Headquarters, 7th Infantry Division and Fort Ord Orders 273-175 dated
30 September 1977 released the applicant from active duty with an effective
date of 7 October 1977.  On the date following, he was transferred to the
Army National Guard/United States Army Reserve.

9.  Headquarters, 7th Infantry Division and Fort Ord Special Court-Martial
Order Number 90 dated 5 October 1977 rescinded Special Court-Martial Order
Number 85 dated 19 September 1977.

10.  Headquarters, 7th Infantry Division and Fort Ord Orders 285-166 dated
12 October 1977 revoked the orders which released the applicant from active
duty on 7 October 1977 for an unknown reason.

11.  Headquarters, 7th Infantry Division and Fort Ord Special Court-Martial
Order Number 100, undated, affirmed the findings of guilty of the
applicant's charge of assault and battery and the portion of the sentence
to confinement at hard labor for 2 months.

12.  The applicant's service personnel records contain a DA Form 2496
(Disposition Form) dated 21 November 1977 which directed the applicant's
separation from the service with an Honorable Discharge Certificate.  This
document stated that his health and dental records were forwarded to the
separation point during the applicant's out-processing for departure on
excess leave.

13.  Headquarters, 7th Infantry Division and Fort Ord, California Orders
326-363 dated 22 November 1977 reassigned the applicant to the United
States Army Transfer Point with an effective date of separation as "28
November 1977."

14.  Accordingly, the applicant was released from active duty on 28
November 1977 under the provisions of Army Regulation 635-200, chapter 2 at
his expiration of term of service.

15.  His DD Form 214 shows the effective date of his release from active
duty as 28 November 1977 in item 9d (Effective Date).

16.  Item 27 (Remarks) on the applicant's DD Form 214 shows the entry "295
days excess leave from 7Feb thru 28Nov77."

17.  Item 35 (Record of Assignments) on his DA Form 2-1 (Personnel
Qualification Record) shows he was released from active duty on 28 November
1977.

18.  The applicant submitted four letters of support from his mother.  In
effect, she stated the applicant was notified of his discharge subsequent
to the date of his car accident on 12 December 1977.  His mother stated the
applicant received his discharge document and orders dated 22 November 1977
on 16 December 1977.

19.  Army Regulation 635-5 (Separation Documents) governs the preparation
of the DD Form 214.  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.  In the version in effect at the
time, it directed that the date separation was accomplished would be
entered in item 9(d) of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army on 28 January 1975 for 2
years.

2.  As a result of a court-martial action, the applicant was placed on
excess leave on 7 February 1977.

3.  The applicant's DD Form 214 shows he was on excess leave from 7
February 1977 through 28 November 1977, the date he was separated from
active duty.

4.  Orders and other documents show action was taken to separate the
applicant as early as September 1977 for an unknown reason.  These orders
were rescinded and not issued again until 22 November 1977.  There is no
evidence to support his contentions that these orders were "pre-dated" or
"backdated."

5.  The applicant was released from active duty on 28 November 1977.  As a
result, his DD Form 214 was prepared to properly reflect the effective date
of his separation as 28 November 1977.  There is no evidence of error or
injustice.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 November 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 November 1980.  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

SK______  DA______  DT______  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.




                                  Stanley Kelley________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050002993                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051108                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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