IN THE CASE OF:	  

		BOARD DATE:	  25 October 2012

		DOCKET NUMBER:  AR20120006068 


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 DD Form 214 (Report of Separation from the Armed Forces of the United States) to show he held the rank/pay grade of sergeant (SGT)/E-5 while serving in Korea and issuance of a DD Form 215 (Correction to DD Form 214)

2.  He states:

* he received a battlefield promotion to SGT while serving with the 35th Infantry Regiment, 25th Infantry Division, in Korea in the "Iron Triangle" and "Punchbowl"
* his records were damaged in the National Personnel Records Center fire of 1973
* his Defense Finance and Accounting Service (DFAS) pay records should show he received E-5 pay

3.  He provides:

* DD Form 214
* DD Form 230 (Service Record)
* DA Form 20 (Soldier's Qualification Card)

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 were partially lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from his available (but apparently complete) personnel records.

3.  The applicant's records show he was inducted into the Army of the United States on 28 February 1951.

4.  Section 2 (Appointments, Promotions, or Reductions) of his DD Form 230 shows:

	a.  private (PVT)-1)/E-1 effective 28 February 1951 by authority of the Special Act of 1948, dated 28 February 1951;

	b.  PVT-2/E-2 effective July 1951 by authority of Special Regulation 
615-25-40, dated 28 July 1951; and

	c.  private first class (PFC)/E-3 effective 25 October 1951 by authority of Company Orders Number 27, Company E, 35th Infantry Regiment, dated 25 October 1951.

5.  Section 29 (Record of Current Service) of his DA Form 20 shows the highest grade he served in was PFC.

6.  He was honorably released from active duty on 5 December 1952 and transferred to the U.S. Army Reserve (Annual Training).

7.  His DD Form 214 shows he completed 1 year, 9 months, and 3 days of net creditable active service.  His DD Form 214 also shows "PFC (T) [temporary] 25 Oct 51" in item 3a (Grade – Rate – Rank and Date of Appointment).

8.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation then in effect stated to enter the grade in which serving at the time of separation, indicating whether permanent or temporary.  Enter the date of rank shown and, if the date of rank is different from the date of appointment, enter the date of appointment in item 38 of the DD Form 214.  If the grade as shown in item 3 is not permanent, enter the permanent grade, date of appointment, and date of rank in item 38 if different from the date of appointment.

DISCUSSION AND CONCLUSIONS:
1.  The evidence of record shows item 3 of the applicant's DD Form 214 correctly shows he was promoted to the temporary rank/pay grade of PFC/E-3 effective 25 October 1951 which was the highest grade he held and served in on active duty.  During the applicant's period of service Soldiers were paid based upon their temporary grades in cases where it was higher than their permanent grades.  It is presumed he was paid as a PFC/E-3 at the time of his separation.

2.  There is no evidence and he did not submit any evidence that shows he either held or was paid in the grade of SGT/E-5.  Therefore, he is not entitled to have his DD Form 214 corrected to show he served as an SGT/E-5 or to be issued a DD Form 215 to show this correction.

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 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)                                         AR20120006068



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ABCMR Record of Proceedings (cont)                                         AR20120006068



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