RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 December 2006
      DOCKET NUMBER:  AR20060006644


      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. Allen Raub                    |     |Chairperson          |
|     |Mr. Frank Jones                   |     |Member               |
|     |Mr. Qawiy Sabree                  |     |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 (Report of
Separation from the Armed Forces of the United States) to show his rank as
private E-2.

2.  The applicant states that his DD Form 214 incorrectly reflects his rank
as private E-1.  He states that he was promoted to private E-2 shortly
after he arrived at Fort Gordon, Georgia during a ceremony in formation.
After he was honorably separated, the wrong rank and pay grade were put on
his DD Form 214.  He does not know how this occurred because he never
received an Article 15 or court-martial.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred
on 8 November 1976.  The application submitted in this case is dated 9
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 enlisted in the Regular Army on 8 June 1976 in the rank
private E-1.  He was assigned to Fort Gordon, Georgia for basic combat
training and advanced individual training.

4.  On 27 October 1976, the applicant’s unit commander notified him of
initiation of separation action under the provisions of Army Regulation 635-
200, paragraph 5-39, for marginal or non-productive performance (Trainee
Discharge Program).  The applicant elected to waive his right to consult
counsel, declined to submit statements in his own behalf and declined to
undergo a separation physical.

5.  On 2 November 1976, the separation authority directed that the
applicant be discharged from the service under the provisions of Army
Regulation 635-200, paragraph 5-39 with an honorable discharge.  The
applicant’s discharge proceedings show his rank as private E-1.
6.  The applicant was discharged from active duty on 8 November 1976 in the
rank of private E-1.  His DD Form 214 shows his date of rank as 8 June
1976.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army on 8 June 1976 in the rank
of private E-1.  He was separated from active duty on 8 November 1976 under
the provisions of Army Regulation 635-200, paragraph 5-39 for marginal or
non-productive performance (Trainee Discharge Program) in the rank of
private E-1.

2.  The applicant contends that he was promoted to private E-2 shortly
after he arrived at Fort Gordon, Georgia.  However, there is no evidence of
record which shows he was promoted to private E-2 prior to his discharge on
8 November 1976.

3.  Therefore, there is insufficient evidence on which base correction of
the applicant’s DD Form 214 to show he was promoted to private E-2.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 8 November 1976; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 7 November 1979.  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

AR______  FJ______  QS______  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.




                                  Allen Raub____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060006644                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061212                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |Mr. Chun                                |
|REVIEW AUTHORITY        |DENY                                    |
|ISSUES         1.       |129.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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