RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        1 May 2007
      DOCKET NUMBER:  AR20060015437


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 that his DD Form 214 (Armed Forces of the United
States Report of Transfer or Discharge) be corrected to show his rank as
Specialist Five (SP5), E-5.

2.  The applicant states he was promoted to SP5 several months prior to his
discharge.  The clerk involved refused to correct it.  In an authorization
form to his Senator, he indicated there might be some monies involved.

3.  The applicant provides his DD Form 214; a letter of appreciation, dated
       29 July 1964; and a DA Form 137 (Installation Clearance Record).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 18 August 1964.  The application submitted in this case
is dated     13 October 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 enlisted in the Regular Army on 23 August 1961.  His DA
Form 24 (Service Record) shows he was promoted to temporary Specialist Four
(SP4), E-4 on 31 December 1962 and to permanent SP4 on 31 December 1963.

4.  On 19 June 1964, the applicant completed a separation physical.  His
Standard Form 88 (Report of Medical Examination) shows his rank and grade
as SP4, E-4.

5.  On 10 July 1964, the applicant accepted nonjudicial punishment under
Article 15, Uniform Code of Military Justice for failing to go to his
appointed place of duty.  His punishment was a forfeiture of $20.00 pay.
The DA Form 2627 (Record of Proceedings under Article 15, UCMJ) shows his
rank as SP5, E-5.

6.  Headquarters, 4th Armored Division Special Orders Number 178, dated
  24 July 1964, reassigned the applicant to the U. S. Army Transfer
Station, Fort Hamilton, NY.  The applicant’s rank is listed as SP4, E-4 in
the standard name line on these orders.

7.  The applicant provided a letter of appreciation dated 29 July 1964
which shows his rank as SP5, E-5.

8.  The applicant provided a DA Form 137 dated on or about 9 August 1964
which shows his rank as SP5, E-5.

9.  U. S. Army Personnel Center, Fort Hamilton, Brooklyn, NY Special Orders
Number 226, dated 13 August 1964, released the applicant from active duty.
The applicant’s rank is listed as SP4, E-4 in the standard name line on
these orders.

10.  On 18 August 1964, the applicant completed a DA Form 664 (Serviceman’s
Statement Concerning Application for Compensation from the Veterans
Administration) and a DD Form 1407 (Dependent Medical Care and DD Form 1173
Statement).  On these two forms, he listed his grade as E-5.

11.  On 18 August 1964, the applicant was honorably released from active
duty.  His DD Form 214 shows his rank and grade as permanent SP4, E-4 with
a date of rank of 28 (sic) December 1962.

12.  On 5 February 1965, the applicant completed a DA Form 1140-1 (Army
Reserve Status Verification Questionnaire).  His rank was listed as SP4 on
this form.  He indicated a correction to his address needed to be made.  He
did not indicate in the Remarks section that his rank was incorrect.

13.  On 18 July 1966, the applicant completed a DA Form 1140.  His rank was
listed as SP4.  He apparently made a pen and ink correction to show his
rank as SP5.

DISCUSSION AND CONCLUSIONS:

1.  There are no orders promoting the applicant to SP5, E-5 in his records
and his DA Form 24 does not show he was promoted to SP5.

2.  The evidence of record is contradictory.  Some documents (a 1AA Form
572) dated as early as 19 June 1964 shows his grade as E-5.  Some documents
(U. S. Army Personnel Center, Fort Hamilton, Brooklyn, NY Special Orders
Number 226) dated as late as 13 August 1964 shows his rank and grade as
SP4, E-4.

3.  In the absence of SP5 promotion orders, it is presumed that the
applicant was an SP4, E-4 at the time of his release from active duty and
any documents showing he was an SP5, E-5 were in error.  In the absence of
SP5 promotion orders and evidence from the Defense Finance and Accounting
Center to show the applicant was improperly paid as an E-4, it is presumed
he is not due any back pay and allowances.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 18 August 1964; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         17 August 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

__pms___  __dkh___  __eem___  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.




                                  ____Paul M. Smith____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060015437                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070501                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.       |131.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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