RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 April 2007
	DOCKET NUMBER:  AR20070000644 


	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. John N. Slone

Chairperson

Mr. David K. Haasenritter

Member

Mr. John G. Heck

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 Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) to show his rank as staff sergeant, pay grade E6. 

2.  The applicant states, in effect, that his highest rank was staff sergeant. 

3.  The applicant provides a copy of his Enlistment Contract-Armed Forces of the United States (DD Form 4) dated 15 April 1975, and Orders 07-1132241, United States Army Reserve (USAR), dated 7 July 1976.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 6 February 1979, the date of his discharge from the USAR, Ready Reserve.  The application submitted in this case is dated 2 November 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 16 April 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 76Y1O (Unit Supply Specialist).  

4.  On 23 December 1971, the applicant was released from active duty and transferred to the USAR Control Group (Annual Training).  His DD Form 214 shows that he had attained the rank of specialist five, pay grade E5, and had completed 2 years, 7 months, and 10 days of creditable active duty.

5.  On 6 October 1972, the applicant was assigned for duty as a supply sergeant with the 387th Engineer Company, USAR, Ready Reserve, in Albuquerque, New Mexico.

6.  On 5 May 1973, the applicant was promoted to staff sergeant, pay grade E6, in the USAR, Ready Reserve.
7.  On 21 January 1974, the applicant enlisted in the New Mexico Army National Guard, in the rank of staff sergeant

8.  On 5 September 1974, the applicant was honorably discharged from the New Mexico Army National Guard for the purpose of enlisting in the USAR.

9.  On 6 September 1974, the applicant enlisted in the USAR, in the rank of staff sergeant.

10.  On 7 July 1976, the applicant was honorably discharged from the USAR, Ready Reserve, in the rank of staff sergeant.

11.  On 8 January 1978, the applicant again enlisted in the USAR, Ready Reserve for 1 year, in the rank of staff sergeant.

12.  Between 12 April and 9 November 1978, the applicant's commander sent him five notices of unexcused absence from unit training assembly.  

13.  Orders 24-1, 423rd Supply and Service Battalion, Albuquerque, New Mexico, dated 5 December 1978, reduced the applicant in rank from staff sergeant, pay grade E6 to sergeant, pay grade E5.

14.  On 15 December 1978 and 11 January 1979, the applicant's commander sent two more notices of his failure to attend unit training drills.

15.  Orders 2-1, 423rd Supply and Service Battalion, Albuquerque, New Mexico, dated 17 January 1979, reduced the applicant from sergeant, pay grade E5 to specialist four, pay grade E4.

16.  On 5 February 1979, the applicant's commander requested that he be discharged for continuous missing of drills and failure to respond to written communication.

17.  Accordingly, on 6 February 1979, the applicant was given a general, under honorable conditions discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the applicant served in the Regular Army, Army National Guard, and the United States Army Reserve.  He attained the rank of specialist five, pay grade E5 while serving on active duty in the Regular Army, which is properly reflected on his DD Form 214.  
2.  He attained the rank of staff sergeant, pay grade E6 while serving in the USAR.   However, during the period of his last enlistment in 1978, he failed to attend drills.  He was subsequently reduced in rank and pay grade to specialist, pay grade E4 and then discharged from the United States Army Reserve on 
6 February 1979.

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 6 February 1979; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
5 February 1982.  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

__JGH___  __JS ___  _DKH ___  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.




___     John N. Slone______
          CHAIRPERSON




INDEX

CASE ID
AR20070000644
SUFFIX

RECON
 
DATE BOARDED
20070419 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.0000
2.

3.

4.

5.

6.