RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:                              22 DEC 2005
      DOCKET NUMBER:         AR20050004133


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Ted Kanamine                  |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeanette McPherson            |     |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 DD Form 214 be corrected to reflect
that he was discharged in the pay grade of E-4 or E-5 and that he completed
CBR (Chemical/Biological/Radiological) School.

2.  The applicant states that he served three years and was discharged in
the pay grade of E-3.  He goes on to state that he and another soldier were
charged by civil authorities, the matters were resolved, and the other
soldier was promoted; however, he was never promoted past the pay grade of
E-3.  He further states that he is completing his Masters Degree and
desires to have his record reflect a better record of advancement and his
completion of the CBR School.

3.  The applicant provides a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 25 October 1980.  The application submitted in this case is
dated 14 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 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.  He enlisted in St. Louis, Missouri, on 26 October 1977 for a period of
3 years, airborne training, and assignment to the 75th Ranger Regiment.  He
completed his basic combat training at Fort Leonard Wood, Missouri and was
transferred to Fort Benning, Georgia to undergo his advanced individual
training as an infantryman and airborne training.  Upon successful
completion of his airborne training he was transferred to the 75th Ranger
Regiment at Fort Stewart, Georgia.

4.  He subsequently completed Ranger Training at Fort Benning and was
returned to his unit at Fort Stewart.  He was advanced to the pay grade of
E-3 on 1 September 1978.

5.  He was arrested by the Savannah Police Department on 11 August 1979 and
was charged with Armed Robbery.  He was returned to military control on
8 September 1979 and the disposition of the charges against him is not
present in the available records.

6.  However, his hazardous duty pay (parachute pay) was terminated on
14 September 1979 and he was subsequently transferred to a non-airborne
mechanized infantry unit at Fort Stewart.

7.  On 15 May 1980, nonjudicial punishment was imposed against him for
kicking in the window of a government building without authority and for
disobeying a lawful order from a superior noncommissioned officer.  His
punishment consisted of a reduction to the pay grade of E-2, a forfeiture
of pay, and extra duty.

8.  He was advanced back to the pay grade of E-3 on 18 September 1980 and
on 25 October 1980 he was honorably released from active duty (REFRAD) due
to completion of required service.  He had served 3 years of total active
service.

9.  A review of the available records fails to show that the applicant ever
attended or completed CBR School.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

2.  The applicant’s contention that he should have been promoted to the pay
grade of E-4 or E-5 has been noted and found to be without merit.  The
applicant was reduced in grade as a result of nonjudicial punishment and
was not advanced back to the pay grade of E-3 until shortly before his
REFRAD.  Accordingly, he was REFRAD in the proper pay grade of E-3 and
there appears to be no basis to promote him any further.

3.  The applicant has also failed to show through evidence submitted with
his application or the evidence of record that he completed CBR School.
Accordingly, there appears to be no basis to approve that portion of his
request as well.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 October 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
24 October 1983.  However, 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

____TK__  ___RD__  ___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.




            _____Ted Kanamine_________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050004133                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1980/10/25                              |
|DISCHARGE AUTHORITY     |AR 635-200, CH 2. . . . .               |
|DISCHARGE REASON        |ETS                                     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |189/corr 214                            |
|1.110.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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