RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           22 February 2006
      DOCKET NUMBER:  AR20050008367


      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. John T. Meixell               |     |Chairperson          |
|     |Ms. LaVerne M. Douglas            |     |Member               |
|     |Mr. Donald L. Lewy                |     |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 separation date be changed
from
31 July 1964 to 9 August 1964.

2.  The applicant states, in effect, that his correct separation date
should be 9 August 1964.

3.  The applicant provides a Statement in Support of Claim (VA Form 21-
4138) in support of his application.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 July 1964, the date of his separation.  The application
submitted in this case is dated 18 May 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 applicant’s failure to timely file.

3.  The applicant’s record shows that he initially enlisted in the Regular
Army and entered active duty on 31 July 1959.  He was trained in and
awarded military occupational specialty (MOS) 562.10 (Harbor Craft
Boatswain).

4.  On 18 August 1961, the applicant was honorably discharged for the
purpose of immediate reenlistment.  The separation document (DD Form 214)
he was issued shows he completed a total of 2 years and 18 days of active
military service during the period covered by the DD Form 214.

5.  On 19 August 1961, the applicant reenlisted for three years and
reentered active duty.

6.  The applicant’s Service Record (DA Form 24) shows, in Section I
(Appointments and Reductions), that he first attained the rank of private
first class (PFC), the highest rank he held while serving on active duty,
on 31 May 1962.  It further shows that he was reduced to private/E-2 (PV2)
on 12 September 1963, and was again advanced to PFC on 13 January 1964.

7.  Section 5 (Service Outside the Continental United States) of the
applicant’s DA Form 24 shows he served in Germany and France from 21
October 1961 through 28 July 1964.  Section 9 (Medals, Decorations, and
Citations) shows that during his active duty tenure, he earned the Army
Good Conduct Medal, Sharpshooter Qualification Badge with Carbine Bar and
Marksman Qualification Badge with Tank Weapons Bar.

8.  On 31 July 1964, the applicant was honorably released from active duty
prior to the expiration of his term of service, by reason of early release
of overseas returnee, under the provisions of paragraph 7, Army Regulation
635-205.  The separation document (DD Form 214) he was issued upon his
separation shows he completed a total of 5 years of active military
service.  The applicant authenticated this document with his signature in
Item 34 (Signature of Person Being Transferred or Discharged) on the date
of his separation, 31 July 1964.

9.   Paragraph 7 of Army Regulation 635-205, in effect at the time,
provided for the separation of enlisted personnel who were returning from
overseas with less than 3 months remaining before the expiration of terms
of enlistments or periods for which ordered to active duty.

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents that must be prepared for Soldiers on retirement, discharge,
release from active duty service, or control of the Active Army.  It also
establishes standardized policy for preparing and distributing the DD Form
214.  The regulation contains item-by-item instructions for preparation of
the DD Form 214. It states, in effect, that the effective date of
separation will be the actual separation date, which may be earlier that
contractual date if Soldier is separated early.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contention that the date of his separation entered on his
DD Form 214, 31 July 1964, is in error and that the effective date of his
separation was actually 9 August 1964, and the supporting statement he
submitted were carefully considered.  However, there is insufficient
evidence to support his claim.
2.  The evidence of record confirms the applicant was separated on 31 July
1964, under the provisions of paragraph 7, Army Regulation 635-205, which
provided for the early separation of members returning from overseas with
less than 3 months until their expiration of term of service.  There is no
indication that this separation date is incorrect, or that the applicant
actually remained on active duty through 9 August 1964, as he suggests.

3.  The DD Form 214 issued to the applicant upon his separation confirms he
was released from active duty on 31 July 1964, and the applicant
authenticated this separation document with his signature.  In effect, his
signature was his verification that the information contained on the DD
Form 214, to include the separation date entered in Item 11d (Effective
Date), was correct at the time the DD Form 214 was issued.  As a result,
there is insufficient evidence to support granting the requested relief.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 July 1964, the date of his
separation.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 30 July 1967.  However, he failed to
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

___JTM__  __LMD__  __DLL __  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 T. Meixell_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050008367                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/02/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1964/07/31                              |
|DISCHARGE AUTHORITY     |AR 635-205                              |
|DISCHARGE REASON        |OS Rtn                                  |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  1021 |100.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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