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ARMY | BCMR | CY1990-1993 | 9106917
Original file (9106917.rtf) Auto-classification: Denied
APPLICANT REQUESTS: The applicant requests reconsideration of the Board’s decision that, in effect, denied his request that his military records reflect that he was separated from the Army in the rank of sergeant.

APPLICANT STATES : That he was disappointed with the Board’s decision to deny his request because of failure to file within a set period of time; that his status as a squad leader or as a noncommissioned officer was not taken into account; and that he does not understand the Board’s refusal to correct an injustice and accommodate his request. He states that simple justice and respect for him as a combat veteran should be reason enough to waive the time limitation. He requests information concerning his appeal rights to the Board’s decision.

NEW EVIDENCE OR INFORMATION : Incorporated herein is a summarization of the applicant’s military records prepared to reflect the Board’s original consideration of his case on 4 March 1992. During the consideration of this case, the Board took into account:

a. That the applicant himself stated that he was never promoted to sergeant, and

b. That his report of separation, which he signed, shows his grade as PFC (Private First Class), and

c. That an advisory opinion from an official in the Reserve policy office at St. Louis indicated that there was no evidence to substantiate a promotion to Sergeant.

Army Regulation 15-185 establishes procedures for making application, and the consideration of applications, for the correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records.

Paragraph 7 of that regulation states, in effect, that a claimant must file the application within 3 years after discovery of the alleged error or injustice. Failure to


file within the time prescribed may be excused by the Board if it finds it would be in the interest of justice to do so.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The applicant has provided no new information, nor probative evidence, nor a convincing argument in support of this request. He was not promoted to sergeant, as he himself admits. The applicant’s contention that he should have been promoted to sergeant because he served as a squad leader, a sergeant position, does not translate into a promotion to that rank, and consequently, does not warrant a separation from the Army in other than his actual rank at the time of his discharge.

2. There is no error in the applicant’s records nor any injustice done the applicant. The Board’s original determination, that it was not in the interest of justice to excuse the failure to timely file, was made only after all aspects of the applicant’s case had been considered and it was concluded that there was no basis to recommend a correction of his records. Had the Board determined that error or injustice existed it undoubtedly would have recommended relief. The Board has never denied an application simply because it was not submitted within the required time.

3. In response to the applicant’s inquiry concerning his appeal rights, should he desire to further pursue this matter, he may appeal the Board’s decision to the court with competent jurisdiction.

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

5. In view of the foregoing, there is no basis for granting the applicant’s request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

GRANT

GRANT FORMAL HEARING

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director

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