RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            27 January 2004
	DOCKET NUMBER:   AR2003088482

	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:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Yolanda Maldonado		Member	

	The applicant and counsel if any, did not appear before the Board.

	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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was separated in the rank of sergeant (SGT)/pay grade E-5.  He also requests that his records be corrected to show his home address was ________________ Chicago, Illinois at the time of his separation.

2.  The applicant states that his address at the time of his discharge was ________________ Chicago, Illinois not Carson, Mississippi which was his place of birth.  He states that he passed the promotion board for SGT/E-5, but he never received the promotion.  He also states that he only received a rough draft stating he was to be a SGT/E-5.

3.  The applicant did not provide any documents in support of his application.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an error which occurred on 5 September 1968.  The application submitted in this case is dated 24 February 2003.  

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 limitation 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 DD Form 398 (Statement of Personal History) shows he was born in Carson, Mississippi on 17 March 1948.  He enlisted in the Regular Army on 7 September 1965 for a period of 3 years.  

4.  The applicant's DD Form 4 (Enlistment Record) shows his home address as "________________ Chicago, Illinois".  His enlistment contract shows his place of birth as Carson, Mississippi.  

5.  The applicant was promoted to private first class (PFC)/E-3 on 9 May 1966.  He was promoted to specialist four (SP4)/E-4 on 15 October 1966.  

6.  On 10 February 1968, the applicant was punished under the provisions of Article 15, Uniform Code of Military Justice for violating a lawful regulation by displaying and consuming beer in a military vehicle.  His punishment consisted of a forfeiture of $20.00 pay per month for 1 month, restriction to the limits of Headquarters Battery for 14 days, and performance of extra duty for 14 days, to run concurrently, and reduction to the grade of PFC/E-3.

7.  The applicant's personnel records contain Headquarters, 2nd Infantry Division Special Orders Number 155 dated 3 June 1968 which reduced him to the permanent grade of private E-2 effective 15 May 1968.  These orders indicate that he was punished under Article 15 for misconduct; however, this Article 15 is not available.

8.  The applicant was honorably released from active duty on 5 September 1968. His DD Form 214 shows he was separated in the rank of private E-2 with a date of rank of 15 May 1968.

9.  There is no evidence of record which shows the applicant was promoted to SGT/E-5.

10.  Item 8 (Place of Birth) on the applicant's DD Form 214 shows his place of birth as Carson, Mississippi.  His DD Form 214 shows his home address as "________________ Chicago, Illinois" in item 21 (Home of Record at Time of Entry into Active Service).

11.  Army Regulation 635-5 prescribes the separation documents prepared for soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In pertinent part, it directs that the place of birth will be entered in item 8 of the DD Form 214.  The Home of Record at time of entry into active duty as shown on enlistment or induction record will be entered in item 21.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to SP4/E-4 in October 1966.  

2.  The evidence of record shows the applicant was reduced from SP4/E-4 to PFC/E-3 in February 1968 as a result of an Article 15.  

3.  The evidence of record shows he was reduced from PFC/E-3 to private E-2 in May 1968 and was separated from active duty in the rank of private E-2.

4.  There is no evidence of record which shows he was promoted to SGT/E-5 prior to his release from active duty.

5.  The evidence of record shows the applicant was born in Carson, Mississippi.  His place of birth is properly recorded in item 8 on his DD Form 214.

6.  At the time of enlistment in the Regular Army, his home address was "________________ Chicago, Illinois."  His home address (i.e. his Home of Record) is properly recorded in item 21 on his DD Form 214.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 5 September 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 4 September 1971.  However, 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 file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

AAO_____  LE______  YM______  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 insufficient evidence to show 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.

		Arthur A. Omartian____
		        CHAIRPERSON

INDEX

CASE ID	AR2003088482	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20040127	
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.