RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 March 2007
      DOCKET NUMBER:  AR20060011942


      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. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Scott Faught                  |     |Member               |
|     |Mr. Roland Venable                |     |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 Report of Transfer or Discharge (DD
Form 214) be corrected to show that he was discharged in the rank and pay
grade of sergeant (E-5).

2.  The applicant states that while he was in Vietnam, he was a squad
leader performing in the pay grade of E-5.  He states that the rank and pay
grade he held in Vietnam should be reflected on is DD Form 214.

3.  The applicant provides pictures in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 November 1969.  The application submitted in this case
is dated 23 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.  On 30 November 1966, the applicant enlisted in the Army, in Nashville,
Tennessee, for 3 years, in the pay grade of E-1.  He successfully completed
his training as a light weapons infantryman.  He was promoted to the pay
grade of
E-2 on 30 March 1967.

4.  The applicant was transferred to Vietnam on 14 April 1967 and he was
assigned to Company A, 47th Infantry, 9th Infantry Division.

5.  He was promoted to the pay grade of E-3 on 16 May 1967, and he was
promoted to the pay grade of E-4 on 1 December 1967.

6.  The applicant returned to the Continental United States on 4 May 1968,
and he was assigned to Company B, 2nd Battalion, 52nd Infantry Division,
Fort Hood, Texas.

7.  The applicant was honorably released from active duty (REFRAD) in the
pay grade of E-4, under the provisions of Army Regulation 635-200, chapter
2, on 28 November 1969, at the expiration of his term of service.  He was
transferred to the United States Army Reserve Control Group (Annual
Training).

8.  The DD Form 214 that she was furnished at the time of his discharge
shows that he was discharged in the rank and pay grade of specialist (E-4).

9.  A review of the available records fails to show that the applicant was
ever promoted to the pay grade of E-5 while he was on active duty in the
Army.

10.  Army Regulation 635-5 serves as the authority for the preparation of
the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will
be prepared to reflect an individual's service as it exists on the date of
REFRAD or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 properly reflects his rank and pay grade as
specialist (E-4).

2.  There is no evidence in the available records that supports his
contention that he was ever promoted to the pay grade of E-5.  At that time
of his discharge, he was serving in the pay grade of E-4; therefore, the
rank and pay grade currently reflected on his DD Form 214 is correct.

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

4.  In view of the foregoing, there is no basis for granting the
applicant's request.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 November 1969; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 November 1972.  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

__JA____  __SF  ___  ___RV __  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.




                                  ____James Anderholm_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060011942                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070306                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |102.02                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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