RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 5 January 2006
DOCKET NUMBER: AR20050001375
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. Robert J. McGowan
Analyst
The following members, a quorum, were present:
Mr. William D. Powers
Chairperson
Mr. Thomas M. Ray
Member
Mr. Randolph J. Fleming
Member
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 his records be corrected to show that he was separated in pay grade E-5.
2. The applicant states he was an E-5 when he separated and he did not receive any disciplinary action that would have reduced him to pay grade E-4.
3. The applicant provides:
a. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 23 July 1965 to 14 August 1968.
b. DA Form 20 (Enlisted Qualification Record).
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 14 August 1968. The application submitted in this case is dated 28 December 2004.
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 limitations 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 applicants failure to timely file.
3. The applicant enlisted in the Regular Army for 4 years on 23 July 1965. Upon enlistment, his rank was Private (PVT/E-1). A list of his appointments and reductions reveals:
PVT/E-1 23 Jul 1965 Upon enlistment
PVT/E-2 23 Nov 1965 By regulation
PFC/E-3 23 Mar 1966 Unit Order #39
SP4/E-4 25 Aug 1966 Unit Order #28
SP5/E-5 15 Sep 1967 Special Order #238
SP4/E-4 21 May 1968 Special Order #58
4. The applicant was promoted to Specialist Five (SP5/E-5) on 15 September 1967 by Special Order #238, Headquarters, 313th Radio Research Battalion, Republic of Vietnam. The order is contained in the record.
5. The applicant was reduced to Specialist Four (SP4/E-4) effective 21 May 1968 by Special Order # 63, Headquarters, 311th Army Security Agency Battalion, Fort Wolters, Texas, dated 5 June 1968, which amended Special Order #58. This reduction order is in the record. The reason for reduction is not indicated.
6. In July 1968, the applicant completed a DA Form 2476 (Application for Separation Hardship or Dependency) seeking a hardship discharge. He listed his rank as SP4/E-4. His request was approved and he was separated on 14 August 1968. His rank and pay grade were listed as SP4/E-4.
7. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214. It provides that the active duty grade or rank and pay grade at time of separation will be entered in Block 5a and 5b of the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The applicant was reduced from SP5/E-5 to SP4/E-4 by Special Order #63, dated 5 June 1968. The effective date of rank was established as 21 May 1968.
2. There is no evidence the applicant regained his rank prior to his 14 August 1968 separation. In fact, the applicant listed his rank as SP4/E-4 on his 19 July 1968 request for a hardship discharge. This was less than 1 month prior to his separation.
3. There is no error or injustice in this case.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 14 August 1968; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 13 August 1971. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__wdp___ __tmr___ __rjf___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that 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.
2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.
William D. Powers
______________________
CHAIRPERSON
INDEX
CASE ID
AR20050001375
SUFFIX
RECON
DATE BOARDED
20060105
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
100.0000
2.
129.0000
3.
4.
5.
6.
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