RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 January 2006
      DOCKET NUMBER:  AR20050003159


      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., Michael J. Fowler            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Rodney E. Barber              |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |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 active duty entry date be
changed on his DD Form 214 (Certificate of Release or Discharge from Active
Duty) with the ending period 5 October 1980.

2.  The applicant states, in effect, that he is applying for veterans
benefits and needs his DD Form 214 corrected.  He further states that the 4
January 1977 date he entered active on his DD Form 214 is incorrect and
should be corrected to show the pay entry basic date (PEBD) of 18 December
1976.

3.  The applicant provides a copy of Headquarters, U.S. Army Armor Center
and Fort Knox Orders 130-41, dated 3 July 1980.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on
5 October 1980.  The application submitted in this case is dated 1 March
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.  A DD Form 4 (Enlistment or Reenlistment Agreement - Armed Forces of the
United States), dated 16 December 1976, shows that the applicant enlisted
in the United States Army Reserve (USAR) delayed enlistment program (DEP)
with a PEBD of 16 December 1976.

4.  A DD Form 4c, dated 4 January 1977, shows that the applicant was
discharged from the USAR on 3 January 1977 and enlisted in the Regular
Army.

5.  On 5 October 1980, the applicant was honorably released from active
duty after completing 3 years and 9 months of creditable active service
with two days lost time.  Item 12a (Date Entered Active Duty This Period)
of the applicant's DD Form 214 shows he entered active duty on 4 January
1977.  Item 12e (Total Prior Inactive Service) shows 19 days.  Item 29
(Dates of Time Lost During This Period) shows the entry "780820-780821."

6.  Headquarters, U.S. Army Armor Center and Fort Knox Orders 130-41, dated
3 July 1980, shows that the applicant's PEBD was 18 December 1976,
presumably adjusted due to the two days AWOL.

7.  Army Regulation 140-1 provides policy guidance on the mission,
organization and training of the USAR.  It stated in pertinent part that
the USAR Control Group (Delayed Entry) consists of members enlisted under
Army Regulation 601-210.  They are in a nonpay status and will not take
part in Reserve training.  While assigned to the group, members are exempt
from involuntary order to active duty except during a period of
mobilization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s DD Form 214 is correct.  Soldiers in the DEP are in a
nonpay status, are not on active duty and are even exempt from involuntary
order to active duty except during a period of mobilization.  His military
obligation began the day he entered the Armed Forces (i. e., 16 December
1976, the day he enlisted in the USAR DEP), which evidence shows was
adjusted to
18 December 1976 due to two days lost time.  The applicant did not enter
active duty until 4 January 1977, the day he enlisted in the Regular Army.
His service in the DEP is properly shown in item 12e.

2.  In view of the foregoing, there is no basis for granting the
applicant's request.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 5 October 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
4 October 1983.  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

__LDS_ _  __ REB  _  _ RMN  _  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.




                                 ___ Ms. Linda D. Simmons __
                                        CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050003159                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |12 January 2006                         |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |112.0900.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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