RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        9 January 2007
      DOCKET NUMBER:  AR20060008026


      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. W. W. Osborn, Jr.             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James W. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Scott W. Faught               |     |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, in effect, that his DD Form 214 (Certificate of
Release or Discharge from Active Duty) be corrected to show his rank as
specialist four, pay grade E-4.  He also requests that he receive the pay
due him from the New York Army National Guard.

2.  The applicant states that, ”orders were held back then revealed when I
was leaving.”  He states he was never paid by the Army National Guard.

3.  The applicant provides a copy of a letter from the Department of
Veterans Affairs that shows his final pay grade as E-2.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 November 1982, the date of his separation from the
Army National Guard.  The application submitted in this case is dated 28
June 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 and entered active duty, in the Regular Army, on
8 January 1980.  He completed training as a light weapons infantryman and
served with somewhat mixed success.  He was awarded the Army Commendation
Medal on 12 January 1981 for meritorious achievement during an exercise in
Germany.

4.  Despite nonjudicial punishments (NJP’s) under the provisions of Article
15, Uniform Code of Military Justice (UCMJ), in January, February,
September and December 1981; he was promoted to specialist four, pay grade
E-4 on 30 April 1982.

5.  His separation orders, issued by Headquarters 1st Infantry Division and
Fort Riley Kansas on 17 November 1982, show his rank as specialist four.
Those orders were modified, on 12 December 1982, to show his rank as
private two (PV2) and to revoke the authorization for movement of
dependents and household goods.

6.  The applicant was separated on 16 December 1982 due to the expiration
of his term of service.  His DD Form 214, which he signed, shows his rank
as PV2.
7.  His DA Form 1811 (Physical Data and Aptitude Test Scores Upon Release
from Active Duty), used to authorize reenlistment within a specified time
without physical examination of mental testing, shows his rank as PV2.

8.  On 20 December 1982, the applicant enlisted in the New York Army
National Guard in the rank of PV2, pay grade E-2.  He was separated, in
that rank, and transferred to the United States Army Reserve Control Group
(Annual Training) on 30 November 1983 with a character of service of under
honorable conditions.

9.  There is no available evidence to show the applicant’s attendance at
Army National Guard training assemblies or to indicate whether and how much
he was or was not paid.

10.  In the absence of information to the contrary, the Board is required
to presume all requirements of law and regulation were met and the rights
of the applicant were fully protected throughout the separation process.

DISCUSSION AND CONCLUSIONS:

1.   Although it is not clear how or why the applicant was reduced in rank,
he was clearly aware of it.  Furthermore, it is unreasonable to accept that
a few days later he would have enlisted in the Army National Guard in the
rank PV2 if he believed that rank to be unjust.

2.  There is no available evidence to show the applicant’s Army National
Guard participation or his pay status.

3.  In the absence of evidence to the contrary, it must be presumed that
applicable law and regulations were complied with in the applicant’s case.

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 30 November 1983; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 29 November 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

__JEA __  __JLP___  __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.




                                  __      James E. Anderholm_________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008025                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070109                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131.09                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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