RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 February 2007
      DOCKET NUMBER:  AR20060010566


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William F. Crain              |     |Member               |
|     |Mr. Dale E. DeBruler              |     |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 the records of her deceased
husband, a former service member (FSM), be corrected to reflect his rank as
captain (CPT).

2.  The applicant states, in effect, the FSM was awarded the rank of CPT
after he had left the Army in early 1970.  She claims this action could
have been generated elsewhere and for years, he received mail that
addressed him as CPT.

3.  The applicant provides the following documents in support of the
application:  Death Certificate; Separation Documents (DD Forms 214), dated
9 August 1967 and 10 June 1969; Officer Qualification Record (DA Form 66),
dated
20 December 1968; and United States Army Reserve (USAR) Discharge Orders,
dated 17 April 1974.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 18 April 1974, the date of his discharge from the USAR.
The application submitted in this case is dated 13 July 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 FSM's record shows that he served on active duty in the Regular
Army in an enlisted status for 1 year, 2 months, and 2 days, from 8 June
1966 until 9 August 1967, at which time he was honorably discharged to
accept a commission.  The DD Form 214 he was issued at the time shows he
held the rank of specialist five (SP5), and that he had held and served in
military occupational specialty (MOS) 11E (Armor Crewman).

4.  On 10 August 1967, the FSM was commissioned a second lieutenant (2LT)
in the USAR and was concurrently called to active duty.  He held and served
in MOS 1203 (Tank Unit Commander).

5.  The FSM's Officer Qualification Record shows, in Item 12
(Appointments), that he was promoted to first lieutenant (1LT) on 10 August
1968, and that this is the highest rank he attained while serving on active
duty.  The FSM last audited this record on 20 December 1968.

6.  On 10 June 1969, the FSM was voluntarily released from active duty
(REFRAD) to attend school after completing 1 year, 10 months, and 1 day of
active military service in a commissioned officer status.  The DD Form 214
he was issued at the time confirms he held the rank of 1LT on the date of
his separation.  It also shows he was transferred to the USAR Control Group
(Reinforcement), St, Louis Missouri.  The FSM authenticated this document
with his signature in Item 32 (Signature of Person Being Transferred or
Discharged).

7.  An Annual Statement (AGUZ Form 115), dated 5 October 1973, shows there
were no points accrued by, or transactions completed on, the FSM during the
period 10 August 1972 through 9 August 1973.

8.  On 12 February 1974, the FSM was notified in a letter from the Army
Reserve Components Personnel and Administration Center (ARPERSCEN) that as
a USAR officer who had completed less than 20 years of qualifying service
for retired pay, he was required to accrue a minimum of 27 points each full
retirement year for retention in an active status.  He was further informed
that records showed he had failed to accrue 27 points during the retirement
year, as was required to remain in an active USAR status, and that unless
his statement was corrected to show he accrued the minimum 27 points, his
removal from an active status was mandatory under the law, unless he
requested and was granted a waiver.  The FSM was also notified that if he
failed to reply within
15 days from the receipt date of this letter, he would be administratively
discharged.  There is no indication in the record that the FSM complied
with this requirement.

9.  ARPERSCEN Letter Orders Number 04-1127821, dated 17 April 1974,
directed the applicant's discharge, effective 18 April 1974, based on his
failure to maintain an active status.  These orders listed FSMs rank as
1LT.

10.  The FSM's records are void of any orders or documents indicating that
he was ever selected for, or promoted to CPT by proper authority during his
military service.

11.  The Death Certificate provided by the applicant shows the FSM died on
2 November 2005.

12.  The documents and records submitted by the applicant with the
application coincide with the records and documents on file in the FSM's
record, and all show his rank as 1LT.  The applicant provided no documents
that addressed the FSM as a CPT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that sometime after his discharge, the FSM
had been advanced to CPT was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  The evidence of record confirms the FSM was promoted to 1LT on 10
August 1968, and that this is the highest rank he attained while serving on
active duty, as evidenced by entries in Item 12 of his DA Form 66 and by
the DD Form 214 issued to him upon his REFRAD on 10 June 1969.

3.  The FSM's record is also void of any indication that he was promoted to
CPT by proper authority while a member of the USAR, subsequent to his
REFRAD.  It also shows he failed to accrue any retirement points during the
period 10 August 1972 through 9 August 1973, and as a result he was
ultimately administratively discharged from the USAR for this reason on 18
April 1974, in the rank of 1LT.

4.  Further, there is no indication that the FSM believed his rank was
incorrect, or that he ever attempted to address this issue prior to his
death.  Absent any evidence of record or independent evidence indicating
the FSM was promoted to CPT by proper authority prior to his 1974 discharge
from the USAR, there is an insufficient evidentiary basis to support
granting the requested relief at this time.

5.  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.

6.  Records show the alleged error or injustice now under consideration
related to the FSM's rank should have been discovered on 18 April 1974, the
date of his discharge from the USAR.  Therefore, the time to file a request
for correction of any error or injustice on this matter expired on 17 April
1977.  No application was filed within the 3-year statute of limitations
and 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 has not
been provided.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__HOF __  __HFC __  __DED__  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.




                                  _____Hubert O. Fry______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010566                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/02/13                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1974/04/18                              |
|DISCHARGE AUTHORITY     |AR 135-178                              |
|DISCHARGE REASON        |Failure to Maintain Active Status       |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |144.9213                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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