RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 September 2006
      DOCKET NUMBER:  AR20060000368


      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. G. E. Vandenberg              |     |Analyst              |

The following members, a quorum, were present:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. Jonathan K. Rost              |     |Member               |
|     |Mr. David K. Haasenritter         |     |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 (Certificate of
Release or Discharge from Active Duty) be corrected to show that he served
during Operation Uphold Democracy in Haiti (1994 – 1995) and that he
received a meritorious service award.

2.  The applicant states that he participated in the above operation but
due to many things happening time did not allow for all that he had
accomplished to be recorded at the time of his separation.  He did not
receive an end of service award.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 February 1995, the date of his transfer to the Retired
Reserve.  The application submitted in this case is dated 7 January 2006.

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.  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.  However, based on decisions of the U.S.
Court of Appeals, the ABCMR has adopted the policy of calculating its 3-
year statute of limitations from the date of final action in those requests
wherein an applicant has sought a lower level administrative remedy.
Requests for awards submitted under Title 10, United States Code, Section
1130 (10 USC 1130) to the Army Decorations Board are considered a lower
level administrative remedy.  Since there is no statute of limitations on
filing requests for awards under 10 USC 1130, the ABCMR has determined that
the 3-year statute of limitations for filing with ABCMR should commence on
the date of final action on an award request by the Army Decorations Board.

4.  Since the applicant has not exhausted all administrative relief for
award of a retirement meritorious service award this issue will not be
addressed further.  The applicant has been notified by separate
correspondence of the procedures for requesting review under the provisions
of 10 USC 1130.

5.  The records show the applicant entered active duty on 18 February 1975
and had continuous active duty until he retired on 28 February 1995.

6.  A Standard Form 613 (Verification of Military Retiree’s Service in
Nonwartime Campaigns or Expeditions), dated 4 September 1998 shows the
applicant claimed he served in Southwest Asia from 1990 to 1991.  However,
the National Personnel Records Center (NPRC), St. Louis verifies he served
in Southwest Asia from 21 January through 11 April 1991.

7.  A Standard Form 613, dated 29 June 1995 indicates the applicant claimed
he served in "Haiti" from November 1994 to January 1995 and in the "Persian
Gulf Operation" from October 1989 through February 1990.  It appears that
the NPRC annotated the verification date for his “Persian Gulf Operation”
in the wrong block.  The intent was to verify the applicant served in the
Persian Gulf from
21 January through 11 April 1991 as the previous Standard Form 613
indicates and that there is no evidence he served in Haiti.

8.  The DA Form 2-1 (Enlisted Qualification Record) item 35 (Record of
Assignments) shows a duty assignment with the 10th Signal Company, Fort
Drum, New York from 29 November 1993 through 28 February 1995.

9.  The applicant’s record does not contain any orders or other indication
of participation in Operation Uphold Democracy in Haiti.

DISCUSSION AND CONCLUSIONS:

1.  While it is possible that the applicant served during Operation Uphold
Democracy in Haiti, the available records contain no documentation to
corroborate this fact.  This Board is not an investigative body and the
burden of proof that an error or injustice occurred rests with the
applicant.

2.  The available evidence shows the applicant was assigned to Fort Drum
from 29 November 1993 through 28 February 1995.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 February 1995; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 February 1998.  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

_SAP____  __DKH__  __JKR __  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.




                                  _     _Susan A. Powers______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2006000368                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060907                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |  . . . . .                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |107                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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