IN THE CASE OF:	  

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090010869 


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 correction of his record to show that he was promoted to pay grade E-5 upon completion of his basic training.

2.  The applicant states he was informed by his recruiting officer that he would be promoted to E-5 upon completion of his basic training because of his education.

3.  The applicant provides no additional documentation in support of his application.

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 record shows that he enlisted in the Regular Army on 31 October 1968.  After completion of basic and advanced individual training, he was awarded military occupational specialty 91C (Clinical Specialist).

3.  The applicant's military record contains a DA Form 20 (Enlisted Qualification Record), dated 4 September 1970, which shows he completed basic training at Fort Bliss, Texas, on 18 January 1969.  Item 33 (Appointments and Reductions) shows the applicant was promoted to specialist five/E-5 on 26 February 1970.

4.  The applicant's record also contains a DA Form 3286 (Statements for Enlistment) signed by the applicant on 30 October 1968 which states in part I (General Statement of Understanding), line a, that "All promises made to me are contained in items 3 (Rate/Grade), 37 (Rate/Grade Appointed/Reappointed), 48 (Untitled) of the DD Form 4, my enlistment contract."

5.  The DD Form 4 (Enlistment Contract - Armed Forces of the United States) contained in the applicant's record shows:

	a.  in item 3 the entry "PVT/E-1,"

	b.  in item 37 the entry "NA,"

	c.  in item 48 the entry "Army Career Group 91, Medical Care and Treatment," and

	d.  in item 55 (Signature of Applicant) the applicant's signature.

6.  The applicant's record does not contain any evidence nor does he provide any evidence which shows he was to be promoted to E-5 upon completion of basic training.

7.  Army Regulation 601-210 (Qualifications and Procedures for Processing Applicants for Enlistment and Reenlistment in the Regular Army) prescribes the eligibility requirements and administrative procedures for the enlistment, reenlistment, and extension of enlistments of personnel in the Regular Army.  Chapter 2, section III (Grades), states all applicants without prior active service will be enlisted in the grade E-1 or E-2.  It also includes provisions for the determination of grades for former service members but does not include any provisions authorizing advancement in grade due to education.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been promoted to E-5 upon completion of basic training was carefully considered.  However, although the sincerity of the applicant's contention is not in question, there is insufficient evidence to support the applicant's claim.  As a result, administrative regularity must be presumed in this case and the requested relief cannot be granted.

2.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

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)                                         AR20090010869



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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