RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 24 August 2004
DOCKET NUMBER: AR20060001174
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. Jeanette R. McCants | |Chairperson |
| |Mr. Scott W. Faught | |Member |
| |Mr. Rowland C. Heflin | |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 a period of leave charged as regular leave
be shown to have been convalescent leave.
2. The applicant states that he was charged regular leave instead of
convalescent leave following the determination that his right ankle injury
prevented his continuation on active duty. He has been fighting to get
this corrected since it occurred.
3. The applicant provides no additional documentation.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which
occurred on 25 September 2002, the date of his discharge. The application
submitted in this case is dated 17 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 records show that, on 1 August 2001, the applicant enlisted under
the Delayed Entry Program in pay grade E-4 for participation in the Officer
Candidate Program. He entered active duty on 17 October 2001 and commenced
Officer Candidate School (OCS).
4. Prior to entry on active duty, the applicant had sustained a fracture
to his right ankle. As a result of the rigors of training this condition
continued to give the applicant a problem. After a medical evaluation in
July 2002, it was medically determined that he did not meet the physical
standards for procurement. The applicant waived his right to have his
condition evaluated by a Medical Evaluation Board.
5. The applicant was honorably discharged on 25 September 2002 under the
provisions of Army Regulation 635-200, chapter 7, for erroneous entry.
6. Army Regulation 15-185 (Boards, Commissions, and Committees – Army
Board for Correction of Military Records) prescribes the policies and
procedures for correction of military records by the Secretary of the Army,
acting through the Army Board for Correction of Military Records (ABCMR).
Paragraph 2–9 states that the ABCMR begins its consideration of each case
with the presumption of administrative regularity. The applicant has the
burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The available records do not include nor has the applicant provided any
documentation related to his leave status during the period in question.
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. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 25 September 2002; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 24 September 2005. 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
_JRM ___ __RCH__ __SWF__ 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.
__Jeanette R. McCants_____
CHAIRPERSON
INDEX
|CASE ID |AR20060001174 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20060822 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. | |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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