RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 November 2006
      DOCKET NUMBER:  AR20060007574


      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. John Meixell                  |     |Chairperson          |
|     |Ms. Susan Powers                  |     |Member               |
|     |Mr. Dennis Phillips               |     |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 rank be changed from private first
class (PFC), E-3 to specialist (SPC), E-4 on his Certificate of Retirement,
dated 1 November 1983.  He also requests that his retirement date on his DD
Form 214 (Certificate of Release or Discharge from Active Duty) be changed
from 10 June 1982 to 1 November 1983 in item 12b (Separation Date This
Period).  In addition, he requests that item 6 (Place of Entry into Active
Duty) on his DD Form 214 be changed from Jacksonville, Florida to Waycross,
Georgia.

2.  The applicant states, in effect, that these errors should be corrected.

3.  The applicant provides his DD Form 214 and two Certificates of
Retirement.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged errors which occurred

on 1 November 1983.  The application submitted in this case is dated 22 May
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 27 September 1978.  His
enlistment orders were published by the Department of Defense, Armed Forces
Examining and Entrance Station in Jacksonville, Florida.  His DD Form 4
(Enlistment or Reenlistment Agreement) shows the place of
enlistment/reenlistment as Jacksonville, Florida.

5.  The applicant was evaluated by a formal Physical Evaluation Board (PEB)
on 20 April 1982 and was found to be physically unfit with a combined
disability rating of 50 percent.  The PEB recommended that the applicant be
placed on the Temporary Disability Retired List (TDRL) with reexamination
during August 1983.

6.  The applicant was separated from active duty on 10 June 1982 by reason
of temporary physical disability and placed on the TDRL in the rank of PFC,
E-3.

7.  He was issued a Certificate of Retirement on 10 June 1982 which shows
his rank as “SPECIALIST.”

8.  Item 6 on his DD Form 214 shows the place of enlistment into active
duty as Jacksonville, Florida.

9.  Item 12b on his DD Form 214 shows the separation date as 10 June 1982.

10.  The applicant was removed from the TDRL on 31 October 1983 and was
permanently retired on 1 November 1983.

11.  He was issued a second Certificate of Retirement on 1 November 1983
which shows his rank as “PRIVATE FIRST CLASS.”

12.  On 19 December 2000, the ABCMR corrected the applicant’s records to
show he was placed on the retired list in the pay grade of E-4, effective
10 June 1982.

13.  He was issued a DD Form 215 (Correction to DD Form 214), dated 15 May
2001, which amended item 4a to show his rank as “SPC”; item 4b to show his
pay grade as “E-4”; and item 12h to show the effective date of pay grade as

“82 06 10.”

14.  Army Regulation 635-5 (Separation Documents), in effect at the time,
states that the city and state where the Soldier entered active duty from
civilian life would be entered in Block 6 on the DD Form 214.

15.  Army Regulation 635-5 states, in pertinent part, that the date
separation was accomplished would be entered in item 12(b) of the DD Form
214.

16.  Title 10, U.S. Code, section 1202 provides that if a member would be
qualified for retirement for disability but for the fact that his
disability is not determined to be of a permanent nature and stable, the
Secretary shall, if he also determines that accepted medical principles
indicate that the disability may be of a permanent nature, place the
member’s name on the TDRL with retired pay computed under section 1401 of
this title.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was separated from active duty on 10 June 1982 by reason
of temporary physical disability and was placed on the TDRL.  He was issued
a Certificate of Retirement which properly shows he was retired on 10 June
1982 in the rank of SPC.
2.  The applicant was removed from the TDRL on 31 October 1983 and
permanently retired on 1 November 1983.  Although he was issued a second
Certificate of Retirement on 1 November 1983, his actual retirement date is
10 June 1982, the date he was separated from active duty and placed on the
TDRL.  All that occurred on 1 November 1983 was that his retirement was
made permanent.  He was erroneously issued that second Certificate of
Retirement.  Therefore, the applicant’s initial Certificate of Retirement,
dated 10 June 1982, properly reflects his rank as SPC and there is no basis
for amending the erroneously issued second Certificate of Retirement, dated
1 November 1983 to show his rank as SPC.

3.  Since the applicant was separated from active duty on 10 June 1982, his
DD Form 214 properly reflects this date in item 12b.

4.  The applicant enlisted in the Regular Army on 27 September 1978.  At
that time, his enlistment contract was prepared to reflect his place of
enlistment as Jacksonville, Florida.  His Regular Army enlistment orders
show he entered active duty from Jacksonville, Florida.  Army Regulation
635-5, in effect at the time, directed that the place where the Soldier
entered active duty from civilian life would be entered in item 12b.
Therefore, his DD Form 214 properly reflects his place of entry into active
duty as Jacksonville, Florida.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 November 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 31 October 1986.  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

JM______  SP______  DP______  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 concern ed.

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 Meixell___________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007574                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061128                                |
|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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