RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 6 July 2006
DOCKET NUMBER: AR20050016466
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 |
| |Ms. Wanda L. Waller | |Analyst |
The following members, a quorum, were present:
| |Mr. Eric Andersen | |Chairperson |
| |Mr. Michael Flynn | |Member |
| |Mr. Dennis Phillips | |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, in effect, that his rank be corrected from
private (pay grade E-2) to private first class (pay grade E-3).
2. The applicant states his rank is erroneous on his DD Form 214 (Report
of Transfer or Discharge).
3. The applicant provides a DD Form 1108 (Application for Replacement of
Separation Documents); two service medical records, dated 25 February 1958
and 17 December 1957; and a copy of his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which
occurred on 28 May 1958. The application submitted in this case is dated 1
November 2005.
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 applicant’s failure to timely file.
3. The applicant’s military records are not available to the Board for
review. A fire destroyed approximately 18 million service members’ records
at the National Personnel Records Center in 1973. It is believed that the
applicant’s records were lost or destroyed in that fire. However, there
were sufficient documents remaining in a reconstructed record for the Board
to conduct a fair and impartial review of this case.
4. The applicant was ordered to active duty on 26 June 1956. He served as
a field artillery crewman and was released from active duty on 28 May 1958.
5. Item 3 (Grade) on the applicant's DD Form 214, which was authenticated
in his own hand on 28 May 1958, shows the entry, “PVT E-2 (P).”
6. There are no promotion orders in the available records which show the
applicant was advanced to private first class prior to his release from
active duty on 28 May 1958.
7. The applicant provided two service medical records which show his rank
as private first class.
DISCUSSION AND CONCLUSIONS:
1. The applicant's DD Form 214 shows he was a private E-2 at the time of
his release from active duty on 28 May 1958. In the absence of promotion
orders to private first class, the medical records provided by the
applicant are not sufficient as a basis for amending item 3 on his DD Form
214 to show his rank as private first class.
2. Records show the applicant should have discovered the alleged error now
under consideration on 28 May 1958; therefore, the time for the applicant
to file a request for correction of any error expired on 27 May 1961. 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
EA_____ _MF_____ _DP_____ 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.
___Eric Andersen______
CHAIRPERSON
INDEX
|CASE ID |AR20050016466 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20060706 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. |102.0200 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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