IN THE CASE OF:	  

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090017995 


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 his military records be corrected to show his rank as sergeant.

2.  The applicant states:

* his rank was sergeant, but it is not reflected on his records or discharge
* the record contains an error in his rank
* the error was brought to his attention when he went to apply for Department of Veterans Affairs health care

3.  The applicant provides:

* Honorable Discharge Certificate from the U.S. Army Reserve (USAR)
* Honorable Discharge Certificate from the Army National Guard
* USAR discharge orders
* active duty orders
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 2 May 1967 and 30 March 1970

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 enlisted in the Army National Guard on 13 September 1965 for a period of 6 years.  On 12 September 1970, he was honorably discharged from the Army National Guard in the rank of specialist four and was transferred to the Standby Reserve to complete his remaining service obligation.

3.  The applicant's discharge orders from the Army National Guard, NGB Form 22, and Honorable Discharge Certificate from the Army National Guard show his grade as specialist four.

4.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist four effective 30 March 1969.

5.  Discharge orders, dated 1 September 1971, show the applicant was honorably discharged from the USAR Control Group (Standby Reserve) effective 12 September 1971 in the rank of specialist four.

6.  The applicant's Honorable Discharge Certificate, dated 12 September 1971, shows he was discharged from the USAR in the rank of specialist four.

7.  There are no orders in the available records which show the applicant was promoted to sergeant prior to his discharge from the Army National Guard or the USAR.

DISCUSSION AND CONCLUSIONS:

Although the applicant contends his rank was sergeant, the evidence of record shows he was discharged from the Army National Guard in September 1970 in the rank of specialist four and he was discharged from the USAR in September 1971 in the rank of specialist four.  There is no evidence of record and the applicant provided none which shows he was promoted to sergeant prior to his discharge from the Army National Guard or the USAR.  Therefore, there is insufficient evidence on which to amend his military records to show his rank was sergeant.

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)                                         AR20090017995



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ABCMR Record of Proceedings (cont)                                         AR20090017995



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