RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 OCTOBER 2006
      DOCKET NUMBER:  AR20060001063


      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. Gale J. Thomas                |     |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 that his DD From 214 (Armed Forces of the United
States Report of Transfer or Discharge) and his DD Form 256A (Discharge
Certificate) be corrected to show he was separated in the rank of Private E-
2 or Private E-3.

2.  The applicant states that a Private E-1 is a recruit status, that once
you have completed basic training the pay grade and rank changes to E-2.
He was hospitalized at the time of his discharge, and is not sure whether
he attained the rank of E-3.

3.  The applicant provides a copy of his DD Form 214 and his DD Form 256A,
in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 12 June 1963.  The application submitted in this case is dated
10 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.  The applicant enlisted in the Regular Army on 30 April 1962, for a
period of    3 years.

4.  The applicant’s DA Form 24 (Service Record) indicates the applicant was
absent without leave (AWOL) from 23 July 1962 to 24 July 1962.

5.  On 24 October 1962, the applicant was convicted by a summary court-
martial of being AWOL from 18 September 1962 to 5 October 1962.  He was
sentenced to hard labor without confinement for 30 days.




6.  Hospital records from Pioneer Memorial Hospital, Brawley, California,
dated 17 April 1963, shows the applicant was admitted to the hospital via
ambulance on 30 January 1963, at 1:00 a.m., following an automobile
accident.  The emergency room nurse indicated that the applicant was AWOL
at the time of the accident.  However, being preoccupied with the problem
of caring for the applicant, she did not notify the nearest military
installation of the situation until 4:40 a.m.

7.  The applicant’s DA Form 24 indicates the applicant was AWOL on 27
October 1962, dropped from the rolls as a deserter on 27 November 1962, and
returned to military control on 14 December 1962.  He was AWOL again from
28 January 1963 to 1 February 1963.

8.  A message from The Adjutant General to the Commanding General,
Letterman General Hospital, authorized the applicant’s immediate disability
separation, under the provisions of Army Regulation 635-40A, paragraph 6.
No severance pay was authorized.

9.  The applicant was discharged on 12 June 1963, under the provisions of
Army Regulation 635-40A, for physical disability.  His DD Form 214
indicates he had 11 months and 2 days of creditable service and 71 days of
lost time, and was discharged in the rank of Private E-1.

10.  Army Regulation 600-200, in effect at the time, established policy for
enlisted personnel management.  Chapter 7 (Promotions), provided in
pertinent part, that Soldiers would normally be advanced to E-2 upon
completion of 6 months of active Federal service, unless it was stopped by
the commander.  Soldiers who were in a nonpromotable status will not be
promoted.  Nonpromotable status included Soldiers who were AWOL, in
confinement, in desertion, confined by civil authorities, under arrest, ill
or injured not in the line of duty.  Soldiers were promoted once they
regained promotable status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was AWOL and not in a promotable status at the time
(30 October 1962) he was eligible for advancement to E-2.

2.  The applicant was appropriately separated in the rank of Private E-1.
As a result of his periods of AWOL he was never advanced to a rank higher
than Private E-1.  Therefore, there is no justification for granting his
request.
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 12 June 1963; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on          11 June 1966.  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                 |AR20060001063                           |
|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.       |110.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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