RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 JULY 2006
      DOCKET NUMBER:  AR20050015632


      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. Rene’ R. Parker               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Patrick McGann                |     |Member               |
|     |Ms. Ernestine Fields              |     |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 his date of retirement on his certificate of
retirement be changed from 1 February 1979 to 3 March 1977.

2.  The applicant states, in effect, that his certificate of retirement
should read “Having Served Faithfully and Honorably, was retired from the
United States Army on the Third Day of March One Thousand Nine Hundred and
Seventy-Seven.”  However, due to rushing at the time, a mistake was made.

3.  The applicant provides his Certificate of Retirement, retirement
orders, and     DD Form 214 (Report of Separation from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 2 March 1977.  The application submitted in this case is
dated         7 October 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 records show he enlisted in the Regular Army on
         29 November 1973.  He subsequently reenlisted on 26 November 1974.
 He was credited with 4 years, 3 months, and 1 day of total active service
at the time of his retirement for physical disability on 2 March 1977.

4.  The applicant’s DD Form 214 shows he was separated for the purpose of
retirement.  The effective date is listed as 2 March 1977.

5.  Department of the Army (DA), U.S. Army Military Personnel Center Orders
D36-16 dated 23 February 1977 show that the applicant was determined to be
unfit for duty because of physical disability.  He was placed on the
Temporary Disability Retired List (TDRL) with an effective date of 2 March
1977.

6.  DA, U.S. Army Military Personnel Center Orders D13-7 dated 18 January
1979 show that the applicant was removed from the TDRL on 31 January 1979
and on the following date permanently retired.

7.  The applicant’s Certificate of Retirement shows that he was retired
from the United States Army on 1 February 1979.

8.  Army Regulation 635-5 states, in pertinent part, that a separation
report (DD Form 214) will be prepared at the conclusion of a period of
active Federal service.  An individual whose name is placed on the TDRL is
considered to have been released from active Federal service and as such is
issued a DD Form 214. While on the TDRL individuals do not accumulate
active Federal service and as such when their names are removed from the
TDRL a new DD Form 214 is not issued, as they are not in an “active”
status.

9.  Army Regulation 635-200 (Personnel Separations) states that retirement
orders direct relief from active duty.  Soldiers retiring will be placed on
the retired list on the first day following the effective date of
retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was placed on the TDRL on 2 March 1977 at which time he
was appropriately issued a DD Form 214.  He was subsequently removed from
the TDRL on 31 January 1979 and permanently retired on 1 February 1979.
Therefore, the applicant’s retirement certificate is accurate and creates
no error or injustice.

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

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 2 March 1977; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on            1 March 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

__LE  ___  __PM ___  ___EF __  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.




                            ______Lester Echols_________
                                      CHAIRPERSON
INDEX

|CASE ID                 |AR20050015632                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060718                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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