RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         28 March 2006
      DOCKET NUMBER:  AR20050012609


      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:

|     |Ms. Barbara J. Ellis              |     |Chairperson          |
|     |Mr. Larry J. Olson                |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 the date of his advancement to
officer status on the Retired List be corrected.

2.  The applicant states, in effect, that he was not properly credited with
active service in the United States Army Reserve (USAR) at the time of his
retirement.  As a result, the date of his advancement to first lieutenant/0-
2E on the Retired List should be moved up from the current scheduled date
in November 2007.

3.  The applicant provides no documentary evidence in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 April 1995.  The application submitted in this case is
dated
18 August 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 submitted an Application for
Retirement (DA Form 2339) on 8 June 1994, in which he requested to be
retired in the grade of sergeant first class/E-7 (SFC/E-7) on 1 May 1995.
Item 14 (Chronological Dates of Military Service) accounts for all active
and inactive service performed by the applicant in both the active Army and
Reserves from 11 December 1972 through 30 April 2004, the date of his
scheduled release from active duty (REFRAD) for retirement.  It showed he
completed of 18 years, 1 month and
17 days of active military service, 4 years, 3 months and 3 days of
inactive service, for a total of 22 years, 4 months, and 20 days of
military service for pay purposes.  The applicant authenticated this
document with is signature at the end of Section I and in Item 30
(Statement of Understanding) of Section II.

4.  The applicant's record contains separation documents for the following
periods of active duty service:  11 December 1972 through 1 December 1975
(2 years, 11 months, and 21 days); 1 February 1977 through 29 July 1982
(5 years, 5 months, and 29 days); 30 July 1982 through 23 August 1986 (4
years, 0 months, and 24 days); and 28 September 1989 through 30 April 1995
(5 years, 7 months, and 3 days).  The total active duty service accounted
for on these DD Forms 214 totals 18 years, 1 month, and 17 days.  The
applicant authenticated all but one of these separation documents with his
signature on the dates of his separation from that period of active duty
service.

5.  On 30 April 1995, the applicant was honorably released from active duty
under the provisions of the voluntary early retirement program.  The DD
Form 214 he was issued at the time confirms he completed a total of 18
years,
1 month and 17 days of active military service at the time.  The applicant
authenticated this document with his signature.

6.  On 3 March 2003, the Army Grade Determination Review Board (AGDRB)
convened to consider the applicant's case.  The AGDRB determined the
highest grade in which the applicant served satisfactorily for the purpose
of computation of retired pay was 1LT/0-2E.  It also concluded that he was
not eligible for advancement to captain/0-3 because he had not completed
six months of service in that grade.  The AGDRB also indicated that the
date the applicant would become eligible for advancement on the Retired
List would be determined by the Army Reserve Personnel Command (ARPERSCOM),
St. Louis, Missouri.

7.  On 2 April 2003, a supervisor from the Retirements and Annuities
Branch, ARPERSCOM notified the applicant that based on the action of the
AGDRB, he would be eligible for advancement to 1LT/0-2E on the Retired List
on 17 March 2007, and that he should submit an application requesting
advancement in January 2007.

8.  Title 10 of the United States Code, Section 3964 contains the legal
authority for advancement to a higher grade on the Retired List after 30
years of service.  It states, in pertinent part, that retired enlisted
members and warrant officers of the Army who is retired with less than 30
years of active service is entitled, when his active service plus his time
on the Retired List totals 30 years, to be advanced on the Retired List to
the highest grade in which he satisfactorily served on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the date he becomes eligible for
advancement on the Retired List should be changed because he did not
receive credit for active duty service he performed in the USAR.  However,
there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant completed a total of 18
years,
1 month, and 17 days of active duty service as of 30 April 1995, the date
of his REFRAD for retirement.  His record contains a retirement application
that confirms this active duty service total, and DD Forms 214 on file
corroborate this active duty service total.  The applicant authenticated
his final DD Form 214 on 30 April 1995, the date of his REFRAD for
retirement.  In effect, his signature was his verification that the
information contained on the separation document, to include the active
duty service totals, was correct at the time the DD Form 214 was prepared
and issued.

3.  The applicant's record is void of any record of active duty service
performed while he was in the USAR that is not already accounted for on his
separation documents, or in his application for retirement.  Further, the
applicant has failed to provide any documentary evidence that shows he is
entitled to credit for additional active duty service.

4.  By law, a member may be advanced to the highest grade satisfactorily
held on active duty when his active duty service plus his time on the
Retired List equals 30 years.  In this case, since the applicant had
completed 18 years,
1 month, and 17 days of active duty service as of 30 April 1995, and that
he was placed on the Retired List on 1 May 1995.  Given the facts of this
case, and absent evidence to the contrary, there is no basis to question
the determination made by the appropriate retirement officials, which was
that he will be eligible for advancement on the Retired List in March 2007,
and that he should request this action in January 2007.

5.  Records show the applicant should have discovered the alleged error or
injustice related to his active duty service credit now under consideration
on
30 April 1995, the date of his REFRAD for retirement.  Therefore, the time
for him to file a request for correction of any error or injustice expired
on 29 April 1998.  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

___BJE__  __LJO __  ___RDG_  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.




                                  _____Barbara J. Ellis______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050012609                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/03/28                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1995/04/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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