RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   20 March 2007
	DOCKET NUMBER:  AR20060010178 


	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.



	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 pay grade at the time of his retirement be changed from E-4 to E-5. 

2.  The applicant essentially states that if the Department of the Army cannot find evidence that he was reduced in rank, then his pay grade of E-5 must be reinstated, and his DD Form 214 (Certificate of Release or Discharge From Active Duty) must be corrected. 

3.  The applicant provides a self-authored but unsigned statement, dated 
12 January 2006; an undated and unsigned self-authored statement; a letter, dated 2 January 1990, from his commanding officer at the time; and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing his discharge under honorable conditions from the United States Marine Corps on 4 September 1958 in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 16 March 1995, the date of his 60th birthday, and the date he alleges he was retired.  The application submitted in this case is dated 14 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 records do not appear to be complete.  However, there are sufficient documents remaining to conduct a fair and impartial review of this case.

4.  The applicant provided a letter, dated 2 January 1990, from his commanding officer at that time.  This letter essentially stated that the applicant was a member in good standing with the 2nd Battalion, 218th Field Artillery, Oregon Army National Guard.  It also stated, in effect, that the applicant, who was in the rank of sergeant/pay grade E-5 at the time, has been a member of the Army National 
Guard for approximately 20 years at the time.  It also stated, in pertinent part, that the applicant’s enlistment at the time was not up until October 1992, and that his continuation beyond that date was expected.

5.  Although the applicant’s final discharge document was not in his military records, there are two documents showing that he was reduced in pay grade after the date of the aforementioned letter from his former commanding officer.  A DA Form 4187 (Personnel Action), dated 13 August 1990, from the 2nd Battalion, 218th Field Artillery Regiment, reduced the applicant in rank from sergeant/pay grade E-5 to specialist/pay grade E-4 for misconduct, with a date of rank and effective date of 23 July 1990.  Also, Headquarters, 240th Signal Battalion, California Army National Guard Orders Number 14-1, dated 5 July 1992, reduced that applicant from specialist/pay grade E-4 to private first class/pay grade E-3, for misconduct, with a date of rank and effective date of 8 April 1992.

6.  There are no documents in the applicant’s military records dated after 5 July 1992.

7.  There is no evidence in the applicant’s military records, and the applicant failed to provide any evidence which shows that he was promoted after he was reduced in rank from specialist/pay grade E-4 to private first class/pay grade E-3.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his pay grade at the time of his retirement should be changed from E-4 to E-5.

2.  The applicant failed to prove that an error or injustice occurred by a preponderance of the evidence.  There is no evidence in the applicant’s military records, and the applicant failed to provide any evidence which shows that he was promoted after he was reduced in rank from specialist/pay grade E-4 to private first class/pay grade E-3.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 March 1995; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
15 March 1998.  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

__KN ___  ___DH __  __LD ___  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.




____Kathleen Newman______
          CHAIRPERSON




INDEX

CASE ID
AR20060010178
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
129.0500.0000
2.

3.

4.

5.

6.