RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 March 2007
	DOCKET NUMBER:  AR20060011854 


	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, the rank on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of  4 June 2001, be changed to read specialist instead of private/E-1.

2.  The applicant states, in effect, that when he left Korea his DD Form 214 showed him as an E-4.  However, when he received a replacement DD Form 214 the rank on the document was incorrect.

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

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
4 June 2001, the date of his release from active duty.  The application submitted in this case is dated 1 August 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 enlisted on 5 June 1977 for a period of 4 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11M (mechanized light infantryman).  

4.  Camp Casey Transition Center Orders 017-008, dated 17 January 2001, released the applicant from active duty effective 4 June 2001.  The orders authorized the applicant transition leave from 25 March 2001 to 4 June 2001.
These orders identified the applicant as a specialist. 

5.  Camp Casey Transition Center Orders 099-001, dated 9 April 2001, revoked Orders 017-008, dated 17 January 2001.  These orders identified the applicant as a specialist.

6.  Camp Casey Transition Center Orders 099-002, dated 9 April 2001, released the applicant from active duty effective 4 June 2001.  The orders did not authorize transition leave.  These orders identified the applicant as a specialist. 

7.  Item 18 (Appointments and Reductions) of the applicant’s DD Form 2-1 (Personnel Qualification Record) shows the applicant was reduced to private effective 12 April 2001.

8.  Camp Casey Transition Center Orders 107-006, dated 17 April 2001, revoked Orders 099-002, dated 9 April 2001.  These orders identified the applicant as a specialist.

9.  Camp Casey Transition Center Orders 107-007, dated 17 April 2001, released the applicant from active duty effective 4 June 2001.  The orders authorized the applicant transition leave from 18 April 2001 to 4 June 2001.
These orders identified the applicant as a private.

10.  The records do not contain any other documents concerning the applicant’s reduction in rank.

11.  On 4 June 2001, the applicant was released from active duty due to his completion of required active service.  The applicant had served 4 years of active service that was characterized as honorable.

12.  The applicant’s DD Form 214, which was signed by the applicant, contains the following entries:

a.  Item 4a (Grade, Rate, or Rank) - PV1 (private E-1); and 

b.  Item 4b (Pay Grade) - E1.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  This regulation, in pertinent part, states that the active duty grade or rank and pay grade at the time of separation, taken from the Soldier’s Enlisted Record Book (ERB), will be entered in Item 4a and 4b of the DD Form 214.

14.  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.  The 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.
15.  Army Regulation 635-5 (Separation Documents), then in effect, establishes the standardized policy for preparing and distributing the DD Form 214.  This regulation states, in pertinent part, that a DD Form 214 will not be issued to replace record copies of DD Forms 214 lost by Soldiers.

DISCUSSION AND CONCLUSIONS:

1.  There is insufficient evidence to determine the events that took place between 17 January 2001 and 17 April 2001 which caused the applicant’s reduction in rank.

2.  The applicant’s records show that on the date of his separation he was a private/pay grade E-1.  In the absence of evidence to contrary, it is presumed that what the Army did was correct.  Therefore, the entries in Item 4a and 4b are correct.

3.  The applicant contends that his original DD Form 214 showed him as a specialist/pay grade E-4.  However, upon his request for a replacement 
DD Form 214, a copy from the applicant’s records would have been provided.  A new DD Form 214 would not have been issued.  Therefore, the copy received by the applicant showing his grade as a private E-1 is correct.

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

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 4 June 2001, the date of his separation; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 3 June 2004.  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

___le____  ___mjf__  __lmb____  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.




_________Lester Echols___________
          CHAIRPERSON




INDEX

CASE ID
AR20060011854
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070329
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.