RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 March 2007
DOCKET NUMBER: AR20060012136
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. Gerard W. Schwartz
Acting Director
Ms. Wanda L. Waller
Analyst
The following members, a quorum, were present:
Mr. Kenneth Wright
Chairperson
Mr. Chester Damian
Member
Ms. Ernestine Fields
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 he be retroactively promoted to specialist five/pay grade E-5.
2. The applicant states, in effect, that he should have been promoted because he had the time and (sic) grade.
3. The applicant provides no additional evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 17 December 1964. The application submitted in this case is undated; however, the application was received in this office on 23 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 applicants failure to timely file.
3. The applicant enlisted on 17 April 1953. He served in Korea and was honorably discharged on 14 February 1956 for immediate reenlistment. He reenlisted on 15 February 1956 for a period of 6 years. He served as a recovery specialist in Japan and Alaska, attained the rank of specialist four/pay grade E-4, and was honorably discharged on 22 March 1962. He reenlisted on 23 March 1962 for a period of 3 years.
4. On 21 February 1963, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 3 October 1962 to 12 January 1963. He was sentenced to be reduced to E-3 and to forfeit $50 pay per month for
6 months. On 21 February 1963, the convening authority approved the sentence.
5. The applicant was promoted to specialist four/pay grade E-4 effective
18 October 1963.
6. On 9 October 1964, the applicant was convicted by a special court-martial of being AWOL from 8 April 1964 to 12 September 1964. He was sentenced to forfeit $73 pay per month for 6 months and to be confined at hard labor for
6 months. On 12 October 1964, the convening authority approved only so much of the sentence as provided for a forfeiture of $46 pay per month for 6 months and confinement at hard labor for 6 months.
7. On 17 December 1964, the applicant was discharged in the rank of private/pay grade E-1 with an undesirable discharge under the provisions of Army Regulation 635-208 for unfitness. He had completed a total of 10 years,
3 months, and 26 days of creditable active service with 393 days of lost time due to AWOL and confinement.
8. There is no evidence of record which shows the applicant was promoted to specialist five/pay grade E-5 prior to his discharge on 17 December 1964.
9. Chapter 7 of Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, stated in pertinent part that a court-martial sentence of an enlisted member which, as approved by the convening authority, included a punitive discharge, confinement, or hard labor without confinement, accomplished a reduction to the lowest enlisted pay grade effective on the date of approval by the convening authority.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows the applicant was reduced to private/pay grade E-1 on 12 October 1964 (date of convening authoritys action) as the result of a special court-martial. There are no promotion orders or other evidence of record which shows he was promoted to specialist five/pay grade E-5 prior to his discharge on 17 December 1964. Therefore, there is insufficient evidence on which to retroactively promote him to specialist five/pay grade E-5.
2. Records show the applicant should have discovered the alleged error now under consideration on 17 December 1964; therefore, the time for the applicant to file a request for correction of any error expired on 16 December 1967. 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
KW____ _CD_____ _EF_____ 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.
__Kenneth Wright______
CHAIRPERSON
INDEX
CASE ID
AR20060012136
SUFFIX
RECON
DATE BOARDED
20070327
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
131.0000
2.
3.
4.
5.
6.
ARMY | BCMR | CY2002 | 2002073879C070403
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 14 October 1963, the applicant was ordered to appear before a board of officers to be convened on 30 October 1963 to determine if he should be discharged from the service under the provisions of Army Regulation 635-208. The Board noted the applicant’s letter and other complimentary letters of support which the applicant submitted with his application; however, these...
ARMY | BCMR | CY2003 | 2003084737C070212
The convening authority approved the sentence on 28 August; but the execution thereof was suspended until he was released from confinement. This regulation provides that a soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial empowered to impose a dishonorable discharge. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and...
ARMY | BCMR | CY2009 | 20090018844
On 9 April 1962, the convening authority approved only so much of the sentence as provided for forfeiture of $25.00 and restriction for 14 days. On 2 July 1963, the separation authority approved the recommendation and directed that the applicant be discharged with an undesirable discharge. Since the applicants record of service included one nonjudicial punishment, four summary court-martial convictions, and 48 days of lost time, his record of service was not satisfactory and did not meet...
ARMY | BCMR | CY2007 | 20070000041
The separation authority approved the recommendation for separation and directed that he be issued an undesirable discharge. On 19 March 1965, the Army Discharge Review Board (ADRB) denied the applicants request for an honorable discharge. Since the applicants record of service included one nonjudicial punishment, four summary court-martial convictions, and 71 days of lost time, his record of service was not satisfactory and did not meet the standards of acceptable conduct and...
ARMY | BCMR | CY2002 | 2002078227C070215
The applicant requests correction of military records as stated in the application to the Board and as restated herein. As supporting evidence, he provides his two DD Forms 214 (Armed Forces of the Untied States Report of Transfer or Discharge); his Honorable Discharge Certificate, dated 30 May 1963; his notice of an Undesirable Discharge; his Undesirable Discharge Certificate, dated 11 June 1964; and seven character witness statements. A general discharge is a separation from the Army...
ARMY | BCMR | CY2002 | 2002066820C070402
On 28 July 1965, the convening authority approved only so much of the sentence as provides for a dishonorable discharge, confinement at hard labor for 18 months and total forfeitures. Paragraph 1b of this regulation states that an enlisted person will be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. Therefore, the Board determined that there is no basis for upgrading the applicant’s bad...
ARMY | BCMR | CY2002 | 2002076587C070215
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual. The applicant requests correction of military records as stated in the application to the Board and as restated herein. The Board reviewed the applicant's record of service which included four nonjudicial punishments, one special court-martial conviction, one summary court-martial conviction and 38 days lost.
ARMY | BCMR | CY2010 | 20100000991
The ADRB proceedings indicate that on 4 June 1963 the separation authority approved the recommendation for separation and directed that he be issued an undesirable discharge. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. ABCMR Record of Proceedings (cont) AR20100000991 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont)...
ARMY | BCMR | CY2010 | 20100000292
The applicant was discharged in pay grade E-1 on 10 July 1964 under the provisions of Army Regulation 635-208 with an undesirable discharge. He has provided no evidence to show that he deserved an honorable or a general discharge at that time of separation or now. _______ _ x _______ ___ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ARMY | BCMR | CY2006 | 20060006485
RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 February 2007 DOCKET NUMBER: AR20060006485 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. On 22 March 1966, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge. On 21 June 1977, the applicant's records were reviewed under the provisions of the SDRP wherein it...