BOARD DATE: 8 February 2011 DOCKET NUMBER: AR20100019284 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, restoration of his rank to specialist four (SP4)/E-4 and correction of DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show this rank. 2. The applicant states, in effect, he believes he would have been restored to the rank of SP4/E-4 if he had been given more time to serve after the incident occurred. 3. He provides a copy of his DD Form 214. 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. His record shows he was inducted into the Army of the United States on 28 January 1958. After the completion of basic combat and advanced individual training, he was awarded military occupational specialty 632.10 (Track Vehicle Mechanic). 3. Section 1 (Appointments, Promotions, or Reductions) of his DA Form 24 (Service Record) shows: Grade Date Permanent (P) or Temporary (T) Private (PVT)/E-1 28 January 1958 P PVT/E-2 28 May 1958 P Private First Class (PFC) 16 October 1958 T SP4/E-4 23 April 1959 T PFC/E-3 29 October 1959 T Recruit (RCT)/E-1 1 December 1959 P 4. His record contains a DD Form 458 (Charge Sheet) that shows he was charged with violating Article 91 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from his superior noncommissioned officer (NCO), and for failing to report to the same NCO at 1500 hours on 18 October 1959. 5. A copy of Special Court Martial (SPCM) Order Number 57, 3rd Armored Division (Spearhead), dated 20 November 1959, shows that on 14 November 1959 he was charged with: * Violation of Article 121 of the UCMJ for wrongfully appropriating a 3/4 ton truck belonging to the U.S. Government * Violation of Article 86 of the UCMJ for being absent without leave from his unit during a field training exercise on 31 October 1959 6. He was sentenced to 3 months at hard labor without confinement, a forfeiture of $50.00 pay for 6 months, and reduction to the rank/grade RCT/E-1. 7. He provided a copy of his DD Form 214 that shows he was released from active duty on 27 January 1960, at the expiration of term of service and he was transferred to the U.S. Army Reserve Control Group (XIV U.S. Army Corps) after completing 2 years of net service. Item 3a (Grade, Rate or Rank) shows the entry “RCT (P) (E-1).” Item 3b (Date of Rank) shows 20 November 1959. 8. Army Regulation 635-5 (Personnel Separations), in effect at the time, established uniform administrative procedures and separation forms to be used in connection with the separation of military personnel. Item 3 of the DD Form 214 shows the grade in which an enlisted Soldier was serving at the time of separation with an indication whether it was a permanent or a temporary grade. Additionally, this item also shows the date of rank for the grade shown. If the grade at the time of separation was not permanent, the permanent grade, date of appointment, and date of rank if different from the date of appointment was entered in item 38 (Remarks). DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows he was reduced to the permanent grade of RCT/E1 on 20 November 1959 by an SPCM conviction. 2. There is no evidence that he was promoted subsequent to being reduced to RCT/E-1. 3. In view of these facts, his DD Form 214 properly reflects the correct rank/grade and date of rank. Therefore, he is not entitled to the requested relief. 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) AR20100019284 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100019284 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1