RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 23 August 2005
DOCKET NUMBER: AR20050000833
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
Ms. Beverly A. Young
Analyst
The following members, a quorum, were present:
Ms. Kathleen Newman
Chairperson
Mr. William Powers
Member
Ms. Marla Troup
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 records to show he entered the delayed entry program (DEP) in December 1976.
2. The applicant states that a 3-month error has been made in his records. He states that he entered DEP in December 1976.
3. The applicant provides no documents in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 30 September 1999. The application submitted in this case is dated 5 January 2005.
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 applicants failure to timely file.
3. The applicant underwent a physical examination on 23 March 1977 for the purpose of enlistment in the Regular Army.
4. His DD Form 4 (Enlistment or Reenlistment Agreement) shows he enlisted in the U.S. Army Reserve on 23 March 1977 for a period of six years.
5. Block 19 (DEP) on the applicant's DD Form 1966/1 (Application for Enlistment) shows the date he enlisted in the DEP as 23 March 1977.
6. Item 35 (Record of Assignments) on the applicant's Personnel Qualification Record shows enlisted in the U.S. Army Reserve on 23 March 1977.
7. The applicant enlisted in the Regular Army on 13 September 1977 and he was discharged on 23 July 1980 for the purpose of immediate reenlistment. He reenlisted on 24 July 1980 and continued to serve on active duty through a series of reenlistments.
8. The applicant retired from active duty on 30 September 1999. He completed 22 years and 18 days total active military service.
DISCUSSION AND CONCLUSIONS:
1. The applicant's Enlistment/Reenlistment Agreement and Application for Enlistment show he enlisted in the DEP on 23 March 1977.
2. In addition, the applicant's Personnel Qualification Record shows his enlistment in the DEP as 23 March 1977.
3. Although the applicant contends that he entered DEP in December 1976, the preponderance of evidence shows his enlistment date in the DEP as 23 March 1977. Therefore, there is insufficient evidence on which to grant the applicant's request.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 September 1999; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 September 2002. 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
KN______ WP______ MT______ 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.
Kathleen Newman_______
CHAIRPERSON
INDEX
CASE ID
AR20050000833
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20050823
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES 1.
100.0000
2.
3.
4.
5.
6.
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