RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 3 April 2007
DOCKET NUMBER: AR20060012529
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 rank at the time of his release from active duty be changed from Technician Fourth Grade (T/4) to Technician Fifth Grade (T/5).
2. The applicant essentially states that his rank at the time of his discharge was T/5, as his service medical records shows, but his personnel records only shows that his rank was T/4 when he left active duty.
3. The applicant provides copies of his service medical records from early 1946 which show that his rank was T/5 in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on
25 November 1946, the date of his release from active duty. The application submitted in this case is dated 17 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 applicants complete military records are not available 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 majority of the applicant's records were lost or destroyed in that fire. However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.
4. The applicant provided extracts of his service medical records from early 1946 which show, in pertinent part, that his rank at the time was T/5. However, his War Department Form 372A (Final Payment Work Sheet) shows, in pertinent part, that he was reduced from T/5 to T/4 on 20 August 1946. Another document in his military records also clearly shows that his rank was T/4 at the time of his release from active duty on 25 November 1946.
5. 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 rank at the time of his release from active duty should be changed from T/4 to T/5.
2. While the Board does not doubt the veracity of the applicants claim that his rank at the time of his release from active duty was T/5, two documents in his military records clearly show that his rank at the time of his release from active duty was T/4.
3. 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. In view of the foregoing, there is no basis for granting relief to the applicant in this case.
4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 25 November 1946, the date of his separation from the Army. However, the ABCMR was not established until 2 January 1947. As a result, the time for the applicant to file a request for correction of any error or injustice expired on 1 January 1950. 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
___JI ___ ___SP __ __QS ___ 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.
_______John Infante_______
CHAIRPERSON
INDEX
CASE ID
AR20060012529
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070403
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.
100.0000.0000
2.
110.0000.0000
3.
4.
5.
6.
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