RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 September 2006
      DOCKET NUMBER:  AR20060000347


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Allen L. Raub                 |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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 item 5a (Grade/Rate or Rank),
of his DD Form 214 (Armed Forces of the United States Report of Transfer or
Discharge), be corrected to show the entry "CPL" (corporal) instead of the
   entry "SP4" (specialist four).

2.  The applicant states, in effect, that his DD Form 214 list him as "SP4"
but should be listed as "CPL."  He states that he was told that his rank
would be changed to corporal as soon a position became available.  When a
position was opened, someone else received it.  He was shipped out before
it was ever changed.

3.  The applicant provides no additional documentation in support of his
request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 15 April 1970, the date of his release from active duty.  The
application submitted in this case is dated 27 October 2005 but was
received for processing on 6 January 2006.

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 show he entered active duty (AD) on
16 April 1968, as a field artillery basic.  He was promoted to SP4 on
21 January 1969.  He served in Vietnam from 9 September 1969 to 23 March
1969.

4.  On 27 October 1969, he was punished under Article 15, Uniform Code of
Military Justice, (UCMJ), for failure to go to his appointed place of duty.
 His punishment consisted of a reduction to pay grade E-3 (suspended for
1 month) and 14 days restriction and extra duty.


5.  On 13 November 1969, orders were published reducing the applicant to
pay grade E-3 (Permanent), for misconduct, with an effective date and date
of rank (DOR) of 27 October 1969.

6.  The applicant was promoted to SP4 effective 24 March 1970.  There are
no orders laterally promoting the applicant to corporal, E-4.  There are no
orders appointing the applicant to serve in the temporary rank of corporal.


7.  The applicant continued to serve until he was released from active duty
on 15 April 1970, in the rank and pay grade of SP4/E-4.  He was transferred
to the U.S. Army Reserve (USAR).  He continued to serve in the USAR until
he was honorably discharged on 1 April 1974, in the pay grade of E-4.

8.  The applicant’s DD Form 214 shows the entry "SP4" in item 5a (Grade,
Rate or Rank).

9.  Army Regulation 635-5 provides instructions for the preparation  of  the
DD Form 214.  It states, in pertinent part, that item  5a  (Grade,  Rate  or
Rank) and 5b (Pay Grade) will be completed to show the active duty grade  or
rank and pay grade at the time of separation.

10.  Army Regulation 600-200, in effect at that time, set forth the basic
authority for the Enlisted Personnel Management System.  Chapter 7 covered
Promotions and Reductions.  Paragraph 7-10, applied to Acting
Noncommissioned Officer.  It stated in pertinent part, that company, troop,
battery, and separate detachment commanders could appoint qualified
individual as acting corporals, E-4, and acting sergeants, E-5, to serve in
position vacancies existing in their units, including those resulting from
temporary absences of assigned noncommissioned officers (NCO).  It also
stated that acting noncommissioned officers were not entitled to pay and
allowances for such higher grades, and service would not be credited as
time in a higher grade for promotion or date-of-rank purposes.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence, and the applicant has provided none, to show that
he was appointed as corporal to serve in a position vacancy which existed
in his unit, prior to his release from active duty.



2.  There also is no evidence in the available records to show that he was
advanced or promoted higher than pay grade E-4 prior to his release from
active duty.  Therefore, there is an insufficient basis upon which to
correct items 5a and 5b, of his DD Form 214.

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

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 15 April 1970; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 14 April 1973.  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

___ALR__  _QAS___  ___LB __  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.




                                  ___     Allen L. Raub __________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000347                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060912                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19700415                                |
|DISCHARGE AUTHORITY     |AR 635-2000                             |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |133                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

-----------------------
[pic]