RECORD OF PROCEEDINGS


	IN THE CASE OF:	.


	BOARD DATE:	  26 April 2007
	DOCKET NUMBER:  AR20060015042 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

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 correction of his Certificate of Release or Discharge from Active Duty (DD Form 214) to show his rank as private, pay grade E2.  He also requests payment for the time he spent in the delayed entry program (DEP) and the bonus check he was promised for enlisting in military occupational specialty (MOS)13E1O (Cannon Fire Direction Specialist). 

2.  The applicant states that he was a private, pay grade E2 at the time of his separation, and was promised payment for his time in the DEP and an enlistment bonus check. 

3.  The applicant provides a copy of page one of his Enlistment/Reenlistment Document (DD Form 4/1), the first and third endorsement of his separation packet referring to him as a private, pay grade E2, and a copy of his DD Form 214.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 12 July 1982, the date of his discharge.  The application submitted in this case is dated 17 October 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.  On 21 May 1980, the applicant enlisted in the DEP of the United States Army Reserve (USAR) for 6 years, in the rank of private, pay grade E1.

4.  DD Form 4/1, paragraph 10b, published on 21 May 1980, indicates that the applicant's time in the DEP was creditable for pay purposes upon his enlistment into the Regular Army for service on active duty.  It further stated that this time was not counted toward fulfillment of his military obligation or commitment.  


5.  The applicant's Statements for Enlistment (DA Form 3286-3) indicates that he enlisted for a training of choice option and selected MOS 13E1O.  There is no mention in his enlistment contract of any specific enlistment bonus.

6.  On 19 June 1980, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded MOS 13E1O.  

7.  On 19 December 1980, the applicant was advanced to the rank of private, pay grade E2.  He was subsequently reduced to private, pay grade E1 on 8 July 1981 as a result of misconduct.

8.  On 1 October 1981, the applicant was again advanced to the rank of private, pay grade E2.  He was again reduced to private, pay grade E1 on 5 February 1982, due to misconduct.

9.  On 8 March 1982, a bar to reenlistment was imposed against the applicant.

10.  On 12 July 1982, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 5, under the Expeditious Discharge Program.  He was separated in the rank of private, pay grade E1, and had completed only 
2 years and 24 days of his 3 year obligation.  

11.  The applicant's Personnel Qualification Record, Part 1, (DA Form 2) shows that his pay entry basic date was recorded as 21 May 1980.  His basic active service date was 19 June 1980.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant enlisted in the DEP of the USAR on 21 May 1980 and that this date was properly recorded in his records as being the basis for determining the longevity for pay purposes.  It does not authorize actual payment for those days. 

2.  The evidence shows that the applicant was reduced from private, pay grade E2 to private, pay grade E1, on 5 February 1982 and barred to reenlistment on 
8 March 1982.  His records do not show any subsequent advancements to private, pay grade E2.  The reference to him as a private, pay grade E2 on the separation endorsements does not substantiate that he was actually advanced to that grade.  There is no evidence of record to show that he overcame his problems and was advanced back to private, pay grade E2 prior to his discharge.

3.  There is no substantiating evidence to show that the applicant was promised an enlistment bonus.  

4.  In view of the above, the applicant's request should not be granted.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 July 1982; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
11 July 1985.  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

__DED__  __WDP__  __WFC__  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.



______________________
          CHAIRPERSON

INDEX

CASE ID
AR20060015042
SUFFIX

RECON
 
DATE BOARDED
20070426 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
129.0000
2.
112.1100
3.

4.

5.

6.