RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 March 2007
	DOCKET NUMBER:  AR20060009924 


	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.


X

	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, correction of the rank and pay grade entered in Item 3a (Grade, Rate or Rank) of his 9 January 1958 separation document (DD Form 214).  

2.  The applicant states, in effect, that after reviewing paperwork needed for his eventual burial at Indiantown Gap National Cemetery, he discovered that Item 3a (Grade, Rate or Rank) of his DD Form 214 erroneously shows his rank as specialist 2 (SP2).  He states that while serving in Germany in 1957, he was promoted to specialist five (SP5).  He further states that he believes there was a typographical error made and is now requesting his DD Form 214 be corrected to show his rank as SP5 vice SP4, so that his correct rank will be noted on his burial grave marker.

3.  The applicant provides the following documents in support of his application:  Self Authored Statement; DD Form 214; Honorable Discharge Certificate; Discharge from United States Army Reserve, Letter Orders, dated 30 April 1963; and National Personnel Records Center (NPRC) Letter, dated 6 March 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 30 April 1962, the date of his discharge from the United States Army Reserve (USAR).  The application submitted in this case is dated 7 July 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 are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC) 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.  This case is being considered using reconstructed records, which primarily consists of the applicant’s DD Form 214 and the other documents submitted by the applicant.  

4.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 24 January 1955.  He continuously served on active duty until being honorably separated on 9 January 1958, after completing 2 years, 
11 months, and 16 days of active military service.  

5.  The DD Form 214 issued to the applicant upon his separation contains the entry "SP2 (T)" and Item 3a (Grade, Rate or Rank) and the entry "30 Apr 57" in Item 3b (Date of Rank).  Item 11a (Type of Transfer or Discharge) shows that upon his release from active duty (REFRAD), he was transferred to the USAR to complete his reserve obligation.  Item 18 (Terminal Date of Reserve Obligation) shows his reserve obligation would end on 23 January 1963.

6.  The applicant provides an Office of the Adjutant General, United States Army Records Center, St. Louis 32, Missouri, Letter Orders, dated 30 April 1963.  These orders authorized the applicant's honorable discharge from the USAR on 30 April 1963, in the grade of specialist five (SP5).  He also provides his Honorable Discharge Certificate, dated 30 April 1963, which shows he was discharged in the rank of SP5.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  Chapter 2 establishes standardized policy for the preparation of the DD Form 214.  It states in pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  It also contains guidelines for the preparation of the DD Form 214.  The version of the regulation in effect at the time stated, in pertinent part, that the rank and pay grade entry in Item 3a would be the active duty grade or rank and pay grade the member held at time of separation.  It further states, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record (PQR), or other documents authorized for filing in the Military Personnel Records Jacket (MPRJ) or Official Military Personnel File (OMPF).
8.  The Army enlisted rank structure between 1 July 1955 and 31 May 1958 authorized the rank titles of either sergeant (SGT) or SP2 for the pay grade of 
E-5.  On 1 June 1958, the Army changed the enlisted rank and grade structure.  This resulted in the authorization of the rank title of either SGT or SP5 for the pay grade of E-5.  This structure change was not retroactive and did not provide for correction of rank titles held before 1 June 1958. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 erroneously shows his rank as SP2 and that it should be corrected to show SP5, was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant held the rank of SP2 on 
30 April 1957, the date of his REFRAD.  It also confirms that based on the 1 June 1958 change to the Army enlisted rank and grade structure, this rank title was changed to SP5 while he was serving in the USAR prior to being issued his honorable discharge on 30 April 1963.  Therefore, the rank of SP2 listed on his DD Form 214 was correct at the time the document was issued, and the rank SP5 listed on his Honorable Discharge Certificate from the USAR is also valid.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.  

3.  A copy of a historical information paper regarding the enlisted grade structure of the Army is being enclosed with this decisional document for the applicant's use in clarifying any confusion over his rank title.  

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 this requirement

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 April 1963, the date of his discharge from the USAR.  Therefore, the time for him to file a request for correction of any error or injustice expired on 29 April 1966.  He 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

___X_  __X__  __X __  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.




_____X_____
          CHAIRPERSON




INDEX

CASE ID
AR20060009924
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/01
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1958/01/09
DISCHARGE AUTHORITY
AR635-250 . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
110
2.

3.

4.

5.

6.