RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            28 MARCH 2006
      DOCKET NUMBER:   AR20050007714


      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:

|     |Ms. Barbara Ellis                 |     |Chairperson          |
|     |Mr. Larry Olson                   |     |Member               |
|     |Mr. Ronald Gant                   |     |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 report of separation (DD Form 214) be
corrected to reflect that he was released from active duty (REFRAD) on
28 January 1978.

2.  The applicant states that his REFRAD date on his DD Form 214 should be
28 January 1978 instead of 12 December 1977, as currently reflected.

3.  The applicant provides a copy of a letter from the Human Resources
Command – Alexandria (HRC-ALEX) dated 5 April 2005.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s REFRAD date on his DD Form 214 be
changed from 12 December 1977 to 28 January 1978 and that the correct
authority for separation be entered on that document.

2.  Counsel states, in effect, that the applicant was misled by his first
sergeant to believe that he could go home during the Holiday Early
Transition Program and that he would receive service credit up until his
expiration of term of service; however, such was not the case and therefore
his separation was involuntary.  He also states that the separation
authority was improper and that the DD Form 214 is not valid.  He also
states that the injustice to the applicant involved the first sergeant who
had a powerful influence over the applicant and who took advantage of his
position.  Accordingly, the Board should correct this injustice.

3.  Counsel provides a copy of a disability evaluation by a clinical
psycholiogist indicating that the applicant is totally disabled.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 12 December 1977.  The application submitted in this case is
dated16 May 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 in Los Angeles, California,
on 19 December 1974 for a period of 3 years, training as a Vulcan Crewman
and assignment to the 2nd Armored Division.  He completed his basic combat
training at Fort Polk, Louisiana, and was transferred to Fort Bliss, Texas,
to undergo his advanced individual training (AIT).  Upon completion of his
AIT he was transferred to Fort Hood, Texas, for assignment to the 2nd
Armored Division.

4.  He remained at Fort Hood until he was honorably REFRAD on 12 December
1977, under the provisions of Army Regulation 635-200, chapter 2 and the
Holiday Early Transition Program, due to his ETS.  He had served 2 years,
11 months and 23 days of total active service and had 1 day of lost time
due to being absent without leave (AWOL).

5.  A review of his records shows that he signed an early release statement
indicating that his normal ETS was 18 December 1977 and that he requested
to be released on 12 December 1977.

6.  The letter addressed to the applicant from the HRC-ALEX on 5 April 2005
explains to the applicant that the Holiday Early Transition Program is a
voluntary program and if he believed that an injustice had occurred, he
could apply to this Board.  It further explained that if he was separated
under Army Regulation   635-100, an administrative error had occurred
because that regulation pertains to separation of officers.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been REFRAD on 28
January 1978 instead of 12 December 1977 has been noted and found to be
without merit.  The applicant enlisted on 19 December 1974 for a period of
3 years, which established his ETS as 18 December 1977.

2.  There is no evidence in the available records to show that he ever
extended his enlistment and he acknowledged in his Early Release Statement
that his ETS was 18 December 1977 and that he requested to be released on
12 December 1977.

3.  Additionally, his records show that he was properly discharged under
the provisions of Army Regulation 635-200 due to his ETS.
4.  Therefore, absent evidence to the contrary that would support his
contentions, there appears to be no basis to grant his request.

5.  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.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 12 December 1977; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 11 December 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

___BE __  ___LO___  __RG___  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.


                                  ______Barbara Ellis_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050007714                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060328                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19771212                                |
|DISCHARGE AUTHORITY     |AR 635-200, CH 2                        |
|DISCHARGE REASON        |REFRAD                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |189/corr 214                            |
|1.110.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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