RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            21 November 2006
      DOCKET NUMBER:   AR20060005133


      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. Jessie B. Strickland          |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas Pagan                  |     |Chairperson          |
|     |Mr. Peter Fisher                  |     |Member               |
|     |Ms. LaVerne Douglas               |     |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 report of separation (DD Form 214) be
corrected to reflect in item 4b. that his rank was that of a major (MAJ).

2.  The applicant states, in effect, that he was retired in the rank of MAJ
and his DD Form 214 should reflect his rank as a MAJ instead of a captain
(CPT).

3.  The applicant provides a copy of his retirement orders showing that he
was retired in the rank of MAJ, a copy of his promotion letter to MAJ in
the United States Army Reserve (USAR) effective 1 January 1980 and a copy
of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 October 1980.  The application submitted in this case is
dated 30 March 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 was serving as a United States Air Force staff sergeant
in Kansas, when he accepted a USAR commission to the rank of second
lieutenant (2LT) on 25 July 1969, with a concurrent call to active duty as
an armor officer.  He was transferred to Fort Wolters, Texas for the
initial phase of his rotary wing aviation training.  He was subsequently
transferred to Fort Rucker, Alabama for additional training and then to
Fort Knox, Kentucky to attend the Armor officer basic course before being
transferred to Vietnam on 6 September 1970, for duty as a rotary wing
aviator in an artillery battalion.  He was promoted to the rank of captain
in the Army of the United States (AUS) on 26 August 1971.  He was promoted
to the USAR rank of CPT on 2 January 1973.

4.  On 9 November 1978, the Department of the Army dispatched a
Notification of Release from Active Duty to the applicant informing him
that he had reached the maximum years of active Federal service for a
Reserve officer and that his retirement eligibility date had been
established as 1 October 1980.  He was also informed that he could apply
for voluntary retirement to be effective no later than 1 November 1980.

5.  On 16 January 1980, a letter was dispatched to the applicant from the
Reserve Components Personnel and Administration Center (RCPAC) notifying
him that he was promoted to the rank of MAJ in the USAR effective 1 January
1980.  He was also informed that if he was serving on active duty in a
lower commissioned officer grade than that to which he was promoted, he
could elect to be released from active duty (REFRAD) to accept the
promotion after his REFRAD.

6. On 3 June 1980, while serving on active duty in the rank of CPT, the
applicant submitted his request for voluntary retirement to be effective 31
October 1980.

7.  On 28 August 1980, the Department of the Army approved his request and
published orders releasing the applicant from active duty (REFRAD) in the
rank of CPT effective 31 October 1980 and placing him on the Retired List
in the rank of MAJ , effective 1 November 1980.

8.  On 31 October 1980, the applicant was REFRAD in the rank of CPT and was
transferred to the Retired List in the rank of MAJ.  He had served 20
years, 1 month and 12 days of total active service.

9.  Army Regulation 635-5 serves as the authority for the preparation of
the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will
be prepared to reflect information that is current as of the effective date
of discharge or release from active duty.  Changes that occur subsequent to
the effective date are not authorized to be entered on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant was in fact placed on the Retired List in the rank
of MAJ, at the time he was REFRAD, he was serving in the rank of CPT.

2.  His DD Form 214 was properly prepared to reflect the rank he held on
the date he was REFRAD and he has failed to show through the evidence
submitted with his application and the evidence of record that such was not
the case.

3.  Accordingly, there appears to be no basis to change his DD Form 214 at
this time.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1980; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 30 October 1983.  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

__TP____  ___PF __  ___LD __  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.




                                  _____Thomas Pagan____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060005133                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20061121                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19801031                                |
|DISCHARGE AUTHORITY     |AR 135-155                              |
|DISCHARGE REASON        |RETIREMENT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |189/corr 214                            |
|1.110.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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