APPLICANT REQUESTS:  In effect, the applicant requests that his rank on his DD Form 214 (Report of Transfer or Discharge) be changed from SP5 (Specialist Five) pay grade E-5 to Sergeant E-5.  He states that he was not a specialist.  The applicant submits a copy of a 16 September 1970 maintenance worksheet, a copy of a safety award, copies of two informal routing papers, and a copy of orders awarding him a driver and mechanic badge, all of which show his rank as SGT (Sergeant).   

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was promoted to Specialist Five effective and with a date of rank of 25 September 1969.  Orders of 
29 January 1970 changing his MOS (military occupational specialty) show his rank as SP5.  Leave orders of 
10 April 1970 show his rank as SP5.  Orders of 1 June 1970 awarding him a sharpshooter qualification badge with the rifle, show his rank as SP5.

Orders of 6 October 1970 transferring the applicant to the Fort Dix, New Jersey transfer point for separation processing show his rank as SP5.  Orders of 21 October 1970 awarding the applicant the Good Conduct Medal show his rank as SP5.  

A 4 November 1970 security termination statement and debriefing certificate, which the applicant signed, shows his rank as SP5.  Orders of 7 November 1970 releasing the applicant from active duty show his rank as SP5.  Orders of 24 October 1973 from the Reserve Center at St. Louis relieving him from the Reserves and discharging him effective 1 November 1973 show his rank as SP5.

There is no evidence contained in the applicant’s records of orders appointing him to the rank of Sergeant (SGT).

Army Regulation 600-200, then in effect, authorizes the lateral appointment from specialist to NCO within the same pay grade, and states that lateral appointments will be announced in orders.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 
7 November 1970, the date of his release from active duty.  The time for the applicant to file a request for correction of any error or injustice expired on 7 November 1973.

The application is dated 30 January 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION



		Karl F. Schneider
		Acting Director