RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 OCTOBER 2006
      DOCKET NUMBER:  AR20060000346


      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. John Infante                  |     |Chairperson          |
|     |Mr. Gerald Purcell                |     |Member               |
|     |Ms. Karmin Jenkins                |     |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 his DD Form 214 (Armed Forces
of the United States Report of Transfer or Discharge) be changed from 3
years to 4 years.

2.  The applicant states that he received orders which credited him with 4
years of active duty service.  He maintains that he was transferred to the
Army National Guard to complete his last year of a 4 year enlistment and he
was not supposed to be discharged after 3 years.  He said he completed 4
years of active duty for pay and 2 years of Reserve service as required by
his 1970 enlistment contract.

3.  The applicant provides his DD Form 214 and a copy of his release from
active duty orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 August 1973.  The application submitted in this case is
dated      14 December 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
         30 July 1970.  On 3 August 1973 he was honorably released from
active duty and transferred to the California Army National Guard.

4.  The applicant’s DD Form 214 lists paragraph 5-3, Army Regulation 635-
200 Commanding General United States Army Secretarial Authority (USASA) and
Message 082230Z, dated February 1972 as the authority for discharge.  Item
22a(1) shows “Net Service This Period” as 3 years.

5.  Special Orders 153, dated 25 July 1973, relieved the applicant from
active duty.  The authority listed on the order is the same authority
listed on his          DD Form 214.  The order stated that “This individual
is credited with his full term of active duty of 48 months.”

6.  Message 082230Z, dated February 1972, which was cited on the
applicant’s DD Form 214 and in his special orders that directed his release
from active duty, could not be located.

7.  Army Regulation 635-200 (Enlisted Personnel), in effect at the time,
paragraph 5-3 states that the separation of personnel for the convenience
of the government is the prerogative of the Secretary of the Army and will
be accomplished only by his authority.  Such authority may be given either
in an individual case or by an order applicable to all cases specified in
such order.

8.  Army Regulation 635-5 (Personnel Separations), in effect at the time,
states, in pertinent part, that a DD Form 214 will be prepared for all
personnel at the time of retirement, discharge or release from the Active
Army.  The regulation also established standardized procedures for
preparation and distribution of the DD Form 214.  The regulation states in
item 22a(1) enter the total service completed between the dates shown in
item 17c and 11d as represented continual and foreign service less time
lost subsequent to expiration of term of service.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s record shows that he enlisted in the Army on 30 July
1970 and separated on 3 August 1973.  The date listed in item 22a of the
applicant’s DD Form 214 is the total service completed between those dates,
specifically
3 years.

2.  The applicant’s separation orders credited him with his full term of
active duty service of 48 months.  However, without the message that
provided guidelines or the intent of his separation, it is unclear what
instructions might have lead to that entry being placed on his orders.  In
similar early release cases the intent of the program was to credit the
Soldier with completion of their enlistment contract so that they would
reap the benefits of their contract and not be penalized for early
separation.  Therefore, in the absence of evidence to the contrary, the
presumption of regularity applies in this case.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 August 1973; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on           2 August 1976.  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

___JI  ___  __GP  __  ___KJ___  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 Infante_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000346                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061012                                |
|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.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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