RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 August 2006
      DOCKET NUMBER:  AR20060000939


      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. Beverly A. Young              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Curtis Greenway               |     |Chairperson          |
|     |Mr. James Gunlicks                |     |Member               |
|     |Ms. Peguine Taylor                |     |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 correction of his DD Form 214 (Armed Forces of
the United States Report of Transfer or Discharge) to show he entered
active duty in February 1971 or late January 1971.  He also requests that
his total service be corrected.

2.  The applicant states that it was probably a clerical error.

3.  The applicant provides two copies of his DD Form 214 and a letter from
the Office of the Adjutant General and the Adjutant General Center, dated
15 July 1976.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 22 August 1972.  The application submitted in this case is
dated 15 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 underwent a physical examination on 1 October 1971 for
the purpose of enlistment in the Regular Army.  His DD Form 4 (Enlistment
Contract) shows he enlisted in the Regular Army on 23 November 1971 with no
prior service.  He completed a DA Form 3286-4 (Statements for Enlistment)
on 23 November 1971.

4.  Department of the Army, Armed Forces Examining and Entrance Station
Special Orders Number 228, dated 23 November 1971, shows the applicant
enlisted in the Regular Army on 23 November 1971 for a period of 3 years.

5.  Item 38 (Record of Assignments) on the applicant’s DA Form 20 (Enlisted
Qualification Record) shows he entered active duty on 23 November 1971.
His DA Form 20 shows he was assigned to Fort Dix, New Jersey on 6 December
1971 for basic combat training.  Upon successful completion of advanced
individual training, he was awarded military occupational specialty (MOS)
16H (Air Defense Artillery Operator’s and Intelligence Assistant).

6.  The applicant was discharged from active duty on 22 August 1972 under
the provisions of Army Regulation 635-212 for unfitness with the issuance
of an undesirable discharge.  This DD Form 214 erroneously shows he
completed
1 year, 8 months, and 17 days of active military service with 13 days of
lost time.

7.  Item 15 (Date Entered Active Duty This Period) on the applicant’s DD
Form 214 shows he entered active duty on 23 November 1971.

8.  On 28 June 1976, the Army Discharge Review Board changed the
applicant’s discharge from undesirable to general under honorable
conditions.  In October 1980, his discharge was recharacterized to fully
honorable as a result of the Order of the U.S. District Court for the
District of Columbia in Giles V. Secretary of the Army (Civil Action 77-
9404).  Both DD Forms 214 correctly show he completed 8 months and 17 days
of active military service.

9.  Army Regulation 635-5 (Separation Documents) governs the preparation of
the DD Form 214.  It states that the DD Form 214 is a synopsis of the
Soldier's most recent period of continuous active duty.  It provides a
brief, clear-cut record of active Army service at the time of release from
active duty, retirement or discharge.  In the version in effect at the
time, it directed that the date entered active duty would be entered in
item 15 of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he entered active duty in February 1971 or
late January 1971.  However, the preponderance of evidence shows he
enlisted in the Regular Army on 23 November 1971 and completed 8 months and
17 days of active military service.

2.  The applicant's DD Form 214 was prepared to properly reflect the date
he entered active duty as 23 November 1971.  Although his original DD Form
214 was incorrectly prepared to show 1 year, 8 months, and 17 days of
active military service, his subsequent DD Forms 214 (prepared as a result
of discharge upgrades) show 8 months and 17 days of active military
service.  Therefore, there is no basis for correcting his records to show
he entered active duty in February 1971 or late January 1971 or to correct
his total service.



3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 August 1972; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 21 August 1975.  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

CG______  JG______  PT______  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.




                                  Curtis Greenway_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000939                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060810                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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