BOARD DATE:	  February 23, 2010

		DOCKET NUMBER:  AR20090014491 


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 that his DD Form 214 (Report of Separation from Active Duty) be corrected to show his rank of sergeant.

2.  The applicant states his DD Form 214 erroneously shows his rank as corporal.

3.  The applicant provides his DD Form 214; his discharge certificate which shows his rank as corporal; and Special Orders Number 246 dated 5 December 1952 which shows the applicant, then listed as sergeant, qualified with the M-1 rifle.

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 Board requested the applicant's military records from the repository in St. Louis, Missouri, but without success.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were amongst those records lost in that fire.

3.  The applicant's DD Form 214 shows that he enlisted in the Regular Army on 22 March 1950, was promoted to the rank of corporal on 10 December 1951, and was honorably released from active duty on 14 April 1953 in the rank of corporal. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant submits an order showing he qualified with the M-1 rifle which lists his rank as sergeant.  

2.  Unfortunately, without the applicant's records there is no method of determining whether a typographical error was made when preparing that order or if the applicant was only an acting sergeant or if a typographical error was made when preparing his DD Form 214 and discharge certificate.

3.  In addition, even if the applicant could show he had been promoted, without his records there is no way to determine whether he was reduced in rank prior to his release from active duty.

4.  As such, there is insufficient evidence in which to grant 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)                                         AR20090014491





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ABCMR Record of Proceedings (cont)                                         AR20090014491



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