RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 December 2005
      DOCKET NUMBER:  AR20050003638


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Leonard G. Hassell            |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 item 9d (Effective
Date/Year/Month/ Day) be corrected to show the entry "76 10 01' (1 October
1976) instead of the entry "76 09 27" (27 September 1976), that item 18a
(Record of Service/Net Active Service This Period) be corrected to show the
entry "02 00 00"  (2 years) instead of the entry "01 11 26" (1 year,
11 months, and 26 days) and item      18c (Record of Service/Total Active
Service) of his DD Form 214 (Report of Separation From Active Duty) be
corrected to show "02 00 00" ( 2 years)
instead of the entry "01 11 26" (1 year, 11 months, and 26 days).

2.  The applicant states, in effect, that he should be granted four
additional days of net active service for two full years of active service
instead of "1 year, 11 months, and 26 days."  He states that his DD Form 4
(Enlistment Contract-Armed Forces of the United States) shows that he
enlisted for 2 years and signed his contract on 2 October 1974.  He was
released from active duty (AD) on 27 September 1976, which was 4 days
earlier due to no fault of his own.  This early release has adversely
affected his 30 year retirement.

3.  The applicant provides several documents from his military personnel
records in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 27 September 1976, the date of his release from active duty
(AD).  The application submitted in this case is dated 4 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.  The applicant’s military records show that he entered AD on 2 October
1974, as a military policeman (95B20), for a period of 2 years, with an
established expiration of term of service (ETS) date of 1 October 1976.  He
served in Germany from 17 February 1975 to 20 September 1976.

4.  He was promoted to specialist (SP4/E-4) on 16 September 1975.  He
continued to serve until he was honorably released from AD on 27 September
1976, under the provisions of Army Regulation 635-200, paragraph 5-14, due
to overseas returnees.  The date, 27 September 1976, was a Monday.  He was
transferred to the US Army Reserve (USAR) to complete his military service
obligation.

5.  The applicant provides a copy of Headquarters, US Army, Europe and
Seventh Army, Special Orders Number 161, dated 9 June 1976, which released
him from his overseas assignment and transferred him to the US Army
Transfer Station in South Carolina.  He was given a reporting date of
26 September 1976, which was a Sunday, with an ETS date of 1 October 1976.

6.  Item 9d (Effective Date), of the applicant's DD Form 214, shows the
entry    "76 09 27" (27 September 1976), item 18a (Record of Service/Net
Active Service This Period), shows the entry "01 11 26" (1 year, 11 months,
and 26 days), and item 18c (Total Active Service) shows the entry "01 11
26" (1 year, 11 months, and 26 days).  It also shows that the applicant
signed his DD Form 214 attesting to the accuracy/completion of the
information shown, to include the separation date of 27 September 1976.

7.  He continued to serve through a series of continuous reenlistments in
the USAR.  He was promoted to sergeant first class (SFC/E-7) on 1 November
1996.

8.  On 15 May 1998, the Army Reserve Personnel Command (AR-PERSCOM)
notified the applicant that he had completed the required years of service
to be eligible for retired pay, on application, at age 60 (20-Year Letter).

9.  The applicant was released from his troop program unit (TPU) and was
assigned to the 81st Regional Readiness Command, effective 20 May 2005.

10.  The applicant's Statement of Retirement Points shows that he completed
    30 years of qualifying service for retirement purposes.  It also shows
that he was credited with 362 points for his retirement year ending (RYE)
of 27 September 1976 and completed 11 months and 26 days of service, which
was a partial qualifying year for retirement purpose but was considered a
qualifying period of service.





11.  Army Regulation 635-200 (Personnel Separations), in effect at the
time, set forth the basic authority for the separation of enlisted
personnel.  Chapter 5 covers separation for convenience of the government.
Paragraph 5 pertains to overseas returnees.  It states, in pertinent part,
that commanders are authorized to order separation, for the convenience of
the government, of enlisted personnel on their return to the US.  Enlisted
members of the Regular Army and USAR, who upon arrival in the United States
who have less than 30 days remaining from a long tour area or 150 days
remaining from a short tour area before their expiration of term of service
(ETS), will be discharged for the convenience of the government or released
from active duty, and returned to their former National Guard or Army
Reserve status or, released from active duty and transferred to the USAR.

12.  Army Regulation 635-5 governs the preparation of the DD Form 214.  It
states, in pertinent part, that item 9d will be completed to show the
effective date of separation this period; item 18a will be completed to
show the amount of net active service this period, computed by subtracting
item 15 from 9d, and item 18c will be completed to show the total active
service by adding item 18a to 18b.

13.  Appendix A of Army Regulation 140-185, provided by the applicant,
shows that an individual could receive a maximum of 60 inactive duty
training points for a qualifying year for retirement in a given RYE if he
is in an active Reserve status for 359 to 366 days.  Appendix B of Army
Regulation 140-185, provided by the applicant, shows that an individual
must earn 50 points in a RYE for a qualifying year for retirement if he is
in an active Reserve status for 358 to 365 days.  Neither of these
appendices is applicable to an individual in an active duty status and only
apply when there is a break in service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant entered AD on 2 October 1974 for
     2 years with an established ETS of 1 October 1976.  He served overseas
and was released from his overseas unit for transition processing with a
reporting date of 26 September 1976, which was a Sunday.  He was released
from AD under the provisions of Army Regulation 635-200, paragraph 5-14,
due to being an overseas returnee, effective 27 September 1976, (4 days
earlier than his normal scheduled ETS) which was a Monday.






2.  The applicant contends that he should be granted four additional days
of net active service for 2 full years of active Federal service.  However,
item 9d properly reflects his effective date of release from AD, of
27 September 1976, and item 18a and 18c properly documents his net active
service this period and total active service of "1 year, 11 months, and
26 days."  Therefore, he is not entitled to correction of item 9d to show
the entry "76 10 01" (1 October 1976) or correction to item 18a and 18c to
show the entry "02 00 00" (2 years).  Therefore, his DD Form 214 is correct
as currently constituted.

3.  The applicant's RYE of 27 September 1976 shows that he was awarded
362 AD points and, although he was short 3 days of completing a full year
of service qualifying for retirement, it does count as day for day AD
service of 11 months and 26 days.  At this time the applicant has not been
denied any earned qualifying service or retirement benefits.

4.  The evidence of record shows that the applicant has completed 30 years
of qualifying service for retired pay as of 20 May 2005, is under the age
of 60, and is currently assigned to the 81st RRC as a SFC.  He is aware
that he is able to retire at this time based on these requirements.  Upon
attainment of age 60, the applicant may apply for Reserve retirement.  The
applicant has provided no evidence, and there is none, to show that his
early release date of 27 September 1976, which consisted of 362 AD points,
adversely affected his 30 years of qualifying service for retirement
purposes.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 September 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 26 September 1979.  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

__MJF___  __LGH__  __JS____  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 Slone_______
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20050003638                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051214                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005                                    |
|DISCHARGE AUTHORITY     |AR 140-10                               |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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