RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            29 JUNE 2006
      DOCKET NUMBER:   AR20050015023


      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. Linda Simmons                 |     |Chairperson          |
|     |Mr. Richard Sayre                 |     |Member               |
|     |Mr. Chester Damian                |     |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 records be corrected to show that he
was discharged in the rank of corporal.

2.  The applicant states, in effect, that just prior to his discharge, his
commander unjustly demoted him to the rank of private first class for
giving away the scraps from the mess hall to Korean Nationals who were
working in the mess hall.

3.  The applicant provides a handwritten letter explaining his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 7 May 1956.  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 military records are not available to the Board for
review.  A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973.  It is believed that the
applicant’s records were lost or destroyed in that fire.  However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.

4.  He was born on 14 October 1933 and enlisted in New York on 8 May 1953
for a period of 3 years.  He was promoted to the pay grade of E-2 on 15
September 1953.

5.  His report of separation (DD Form 214) shows that he served until he
was honorably released from active duty (REFRAD) at Fort Bragg, North
Carolina on 7 May 1956.  His rank at the time of his discharge was private
first class (PFC) and his date of rank was 23 April 1955.  He had served 3
years of total active service, of which 1 year, 4 months and 25 days was
spent overseas.   He was awarded the National Defense Service Medal, the
Korean Service Medal and the United Nations Service Medal.

6.  Army Regulation 635-5 serves as the authority for the preparation of
the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will
be prepared to reflect information that is current at the time of
separation.

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 DD Form 214 shows that his date of rank was 23 April
1955, over a year before his discharge, which is contrary to his assertion
that he was reduced in grade just prior to his REFRAD.

3.  Therefore, in the absence of evidence to show that he was unjustly
reduced in grade, there appears to be no basis to grant his request.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 7 May 1956, therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 6 May 1959.  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

___LS  __  ___RS __  ___CD __  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.




                                  _____Linda Simmons______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015023                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060629                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19560507                                |
|DISCHARGE AUTHORITY     |AR 635-200 & AR 635-250                 |
|DISCHARGE REASON        |REFRAD                                  |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |189/CORR 214                            |
|1.110.0000              |                                        |
|2.133.0000              |322/RED IN RANK                         |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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