IN THE CASE OF: BOARD DATE: 12 February 2009 DOCKET NUMBER: AR20080016225 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was separated in pay grade E-5 vice pay grade E-4 (specialist 4 (SP4)). 2. The applicant states, in effect, that he was promoted to pay grade E-5 prior to his discharge. He also states, in effect, that this pay grade shown on his DD Form 256A (Honorable Discharge Certificate) does not match his DD Form 214. 3. In support of his application, the applicant provides copies of his DD Form 214 and his DD Form 256A. CONSIDERATION OF EVIDENCE: 1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's military records show he was inducted into the Army of the United States, in pay grade E-1, on 23 April 1968. He was promoted to pay grade E-4 on 15 April 1969. 3. The applicant was released from active duty, in pay grade E-4, on 23 January 1970, as an Overseas Returnee. He was transferred to the United States Army Reserve (USAR) Control Group (Annual Training). 4. Item 5a. (Grade, Rate or Rank), of the applicant's DD Form 214, shows the rank, SP4. Item 5b. (Pay Grade) shows pay grade E-4. Item 6 (Date of Rank) shows 15 April 1969. The applicant's record shows no evidence he was promoted to pay grade E-5 while he was serving on active duty. 5. The applicant was discharged from the USAR, in the rank and pay grade of SP5, on 1 April 1974, at the expiration of his term of service. He was issued a DD Form 256A at the time of his discharge. 6. Army Regulation 635-5, in effect at the time, governed the preparation of the DD Form 214. It stated, in pertinent part, that the DD Form 214 would be prepared for all personnel at the time of their retirement, discharge, or release from active duty. The Soldier's rank and date of rank in which they were serving on their release from active duty would be entered in Item 5a and 5b, respectively. The date the Soldier was promoted to the rank listed would be entered in Item 6. DISCUSSION AND CONCLUSIONS: 1. In view of the circumstances in this case, the applicant is not entitled to a correction to his pay grade from E-4 to E-5 on his DD Form 214, dated 23 January 1970. He has not shown error, injustice, or inequity for the relief he now seeks. 2. The applicant contends that the pay grade E-5 is not shown on his 1970 DD Form 214 as it is shown on his DD Form 256A. However, the evidence of record shows the applicant was promoted to pay grade E-4 on 15 April 1969 while serving on active duty. He was released from active duty on 23 January 1970 and transferred to the USAR. He was issued a DD Form 214 properly showing his pay grade as E-4, with a date of rank 15 April 1969. 3. It appears that he was promoted to pay grade SP5 while serving in the USAR. He was discharged from the USAR, in pay grade SP5, on 1 April 1974. He was issued a DD Form 256A properly showing his pay grade as SP5. 4. The applicant has provided no evidence to show he was promoted to and satisfactorily held the pay grade of E-5 while he served on active duty. The evidence of record confirms the applicant held the rank and pay grade SP4/E-4 on the date of his release from active duty. Therefore, there is no error in the entry of his rank or pay grade on his DD Form 214. 5. In view of the foregoing, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x___ ___x____ ____x___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 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. _______ _ _x______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20080016225 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080016225 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1