RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           20 JULY 2004
      DOCKET NUMBER:  AR2004100395


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Kenneth H. Aucock             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Mr. Kenneth Lapin                 |     |Member               |
|     |Mr. Antonio Uribe                 |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Honorable Discharge Certificate be
corrected to show his rank as sergeant vice SP4 (specialist four).

2.  The applicant states that he served his country and put his life on the
line and wants his certificate corrected.  He noticed his rank when he was
discharged and spoke with a counselor, who informed him that there was
nothing he could do about it.  So, some thirty years later he was informed
where he could have it changed [by applying to this Board].

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or
Discharge) and a copy of his Honorable Discharge Certificate.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged error or injustice
which occurred on 24 November 1972.  The application submitted in this case
is dated 27 October 2003.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was inducted into the Army on 25 November 1966, trained
as an infantryman and was assigned to an infantry company in Vietnam, where
he was wounded in action.  He returned to the United States in a patient
status in May 1968 at Fort Devens, Massachusetts, and in August 1968 was
assigned to Fort Jackson, South Carolina as an instructor.  He was released
from active duty on 22 November 1968.  His DD Form 214 shows his rank as
sergeant, pay grade E-5, with a date of rank of 15 November 1968.

4.  Separation orders published by Fort Jackson on 16 November 1968 show
that the applicant's rank was SP4, pay grade E-4.  On 21 November 1968
orders were published at Fort Jackson awarding the applicant the Army
Commendation Medal.  That order indicates that his rank was specialist
four.  On 22 November 1968 the commanding officer of the Fort Jackson
transfer point completed a form notifying the New York State Adjutant
General of the applicant's release from active duty.  That form shows his
rank as SP4.
5.  A 25 November 1968 report of medical history which the applicant
completed shows that he indicated that his rank was sergeant, E-5.  A 30
September 1968 separation physical evaluation record indicates that the
applicant's pay grade was E-5.  A dependent medical care statement which
the applicant completed on 22 November 1968 shows that he indicated that
his rank was sergeant, pay grade E-5, as does a statement that he completed
concerning application for compensation from the Veterans Administration.
He completed a statement of medical condition on 22 November 1968 in which
he indicated his rank as sergeant, pay grade E-5.

6.  On 14 July 1971 the Army Administration Center at St. Louis notified
the applicant that his records did not contain a copy of promotion orders
to sergeant. He was requested to forward a copy of the orders, if
available.

7.  The applicant was discharged from the Army on 24 November 1972
[completion of his statutory military service obligation].  His Honorable
Discharge Certificate shows his rank as SP4.

8.  The applicant's records do not contain an order promoting him to
sergeant, pay grade E-5.

DISCUSSION AND CONCLUSIONS:

1.  Orders published prior to his release from active duty on 22 November
1968 show his rank as specialist four, as does the document prepared by the
Fort Jackson transfer point commanding officer.  Those documents, however,
were published within a few days of the 15 November 1968 date of rank shown
on his DD Form 214.  If he was promoted, as he contends, orders effecting
his promotion would not necessarily have been available prior to the
preparation of those documents.  Furthermore, a promotion order might well
have not been included in his military personnel records upon his transfer
to the separation transfer point immediately prior to his release from
active duty.

2.  The applicant, in completing documents prior to his discharge, clearly
felt that he was promoted, as did the official preparing his DD Form 214.
There are, however, no orders promoting him to sergeant; however, there
must have been some basis for showing his rank as sergeant on his DD Form
214.  Considering the circumstances, that is, the publication of orders and
documents on dates almost concurrently with the date of rank shown on his
DD Form 214, it is likely that he was promoted and that the promotion
orders were unavailable to personnel at the time that the documents, e.g.,
separation orders, award orders, etc. were prepared.

3.  The evidence concerning this case is inconclusive; however, his DD Form
214 shows his rank as sergeant.  That form shows a date of rank of 15
November 1968, one week prior to his separation.  Any doubt should be
resolved in favor of the applicant.

4.  Consequently, the applicant's 24 November 1972 Honorable Discharge
Certificate showing his rank as SP4 is incorrect, and is null and void.  He
should be issued an Honorable Discharge Certificate showing that he was
discharged from the Army on 24 November 1972 in the rank of Sergeant.

BOARD VOTE:

__FE ___  ___KL __  ___AU___  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by issuing an Honorable Discharge
Certificate showing that he was discharged from the Army on 24 November
1972 in the rank of Sergeant.





            _____Fred Eichorn______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100395                            |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20040720                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |129.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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