RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         5 April 2007
      DOCKET NUMBER:  AR20060013181


      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      |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda Simmons                 |     |Chairperson          |
|     |Mr. Jeffrey Redmann               |     |Member               |
|     |Mr. Scott 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 Report of Separation (DD
Form 214) be corrected to show 17 January 1975, as the date of his active
duty enlistment.

2.  The applicant states that 17 January 1975 should be shown as his date
of enlistment on active duty since that was the date that he was sworn in
when he enlisted in the United States Army Reserve (USAR).

3.  The applicant provides in support of his application, a portion of his
enlistment contract (DD Form 4).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 19 May 1978.  The application submitted in this case is
dated 4 September 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 17 January 1975, he enlisted in the USAR in Denver, Colorado, for
6 years, in the pay grade of E-1.  He enlisted in the Regular Army (RA) for
3 years on 20 May 1975 and he successfully completed his training as a
carpenter.  On 9 September 1975, upon completion of his training, he was
transferred to Fort Benning, Georgia.

4.  The applicant was promoted to the pay grade of E-2 on 7 November 1975,
promoted to the pay grade of E-3 on 20 May 1976 and promoted to the pay
grade of E-4 on 1 November 1976.






5.  The applicant was at Fort Benning, Georgia, on 19 May 1978, when he was
honorably released from active duty (REFRAD) under the provisions of Army
Regulation 635-200, chapter 2, at the expiration of his term of service.

6.  The DD Form 214 that he was furnished at the time of his REFRAD shows
the date that he entered on active duty as 20 May 1975.

7.  Army Regulation 635-5 serves as the authority for the preparation of
the DD Form 214.  It provides, in pertinent part, that a DD Form 214 is a
summary of a soldier's most recent period of continuous active duty.  It
provides a brief,
clear-cut record of active duty service at the time of REFRAD, retirement,
or discharge.  The DD Form 214 is not intended to have any legal effect on
termination of a soldier's service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 was prepared in accordance with the
applicable regulation.

2.  Although he was sworn in at the time that he enlisted in the USAR, his
active duty service did not begin until the date that he enlisted in the RA
on 20 May 1975.  Therefore, his DD Form 214 was properly prepared to
reflect 20 May 1975 as the date that he entered active duty.

3.  The applicant's contentions have been noted.  However, they are not
sufficiently mitigating to warrant the relief requested.

4.  In order to justify correction of a military record the applicant must
show 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.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 19 May 1978; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 18 May 1981.  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

__LS____  ___JR  __  __SF ___  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.




                                  _____ Linda Simmons_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060013181                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070405                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000/SEPARATION DOCUMENT            |
|2.  190                 |110.0100/CHANGE IN DATE                 |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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