RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	17 April 2008  
	DOCKET NUMBER:  AR20070017552 


	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.


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	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 place of birth and his rank and pay grade as shown on his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, be corrected.

2.  The applicant states, in effect, that he was born at Saint Anthony Hospital in Oklahoma City, Oklahoma, and not in Monterrey, Mexico.  He adds that his pay grade should be shown as E-4 and not as E-3.

3.  In support of his request, the applicant provided a copy of his DD Form 214 and his birth certificate.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he was inducted into the Army of the United States on 22 November 1966.  He was honorably discharged on 30 November 1966 for the purpose of enlisting in the Regular Army.  The evidence shows the applicant enlisted in the Regular Army for three years on 1 December 1966.

3.  The applicant completed basic combat training at Fort Bliss, Texas, and his advanced individual training at Fort Lee, Virginia.  On completion of his training, he was awarded the MOS (Military Occupational Specialty) 43J (Textile Repairman).

4.  The applicant was honorably released from active duty on 5 August 1969, under the provisions of Army Regulation 635-200, Chapter 5, as an overseas returnee.  At the time of his release from active duty, he had completed 2 years, 8 months, and 5 days net active service.  The evidence shows the applicant was released from active duty on temporary records and a Soldier’s Affidavit.
5.  Item 5a (Grade, Rate or Rank) and 5b (Pay Grade), of his DD Form 214, shows he was released from active duty in the rank and pay grade of Private First Class, E-3.

6.  Item 5 (Place of Birth), of the applicant's DD Form 214 dated 30 November 1966, shows he was born in Oklahoma City, Oklahoma.  Item 8 (Place of Birth), of the applicant's DD Form 214 dated 5 August 1969, shows he was born in Monterrey, Mexico.  The Standard Certificate of Live Birth, State of Oklahoma, the applicant submitted in support of his request, shows he was born in Oklahoma, City, Oklahoma.

7.  On 12 December 2007, a DD Form 215 (Correction to DD Form 214) was issued correcting Item 8, of the applicant's DD Form 214, dated 5 August 1969 to show his place of birth to be Oklahoma City, Oklahoma.  Since this item has been corrected, no further action is required and this issue will not be discussed further in this Record of Proceedings.

8.  Because some of the applicant’s records were either lost or destroyed, an accurate record of his promotions and reductions cannot be shown.

9.  The record does show that by 8 March 1968, the applicant had been promoted and was serving in the rank and pay grade, Private First Class, E-3.  On 8 March 1968, he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent from his place of duty on 7 March 1968.  The imposed punishment was a forfeiture of $25.00 and 14 days extra duty.  The applicant did not appeal the punishment imposed.

10.  The applicant’s record further shows that on 20 February 1969, the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from his place of duty, without authority, on 9 February 1969, and remaining so absent until 10 February 1969.  The imposed punishment was a forfeiture of one half of one month’s pay for a period of two months, reduction to pay grade E-1, and 45 days extra duty.  The applicant did not appeal the punishment imposed.

11.  The applicant was apparently advanced in pay grade to E-2 on a date between 25 February 1969, the date his non-judicial punishment was completed, and 25 July 1969.  On this date, Special Orders Number 206, paragraph 5, was published returning the applicant to the US Army Separation Transfer Station, Fort Lewis, Washington, for separation processing.  The rank shown in the standard name line in his reassignment orders is "Private, E-2."
12.  On 4 August 1969, Special Orders Number 216, paragraph 460, was published by the US Army Personnel Center, Fort Lewis.  These orders released the applicant from active duty and transferred him to the U.S. Army Reserve (USAR).  The rank shown in the standard name line in his transfer orders is "Private, E-2."

13.  There is no evidence available, and the applicant provided none to show he was promoted to either Private First Class, E-3 or to Specialist Four, E-4 from the time he arrived at Fort Lewis, Washington to the time he was transferred to the USAR to complete his military service obligation.

14.  On 18 October 1972, the US Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, discharged the applicant from the USAR.  The reason for his discharge is "Expiration of Term of Service."  The applicant was discharged from the USAR in the rank and pay grade of Private First Class, E-3.

15.  In the processing of this case, it was noted the applicant's date of birth is incorrectly entered on his 5 August 1969 DD Form 214.  The date of birth shown on this DD Form 214 is, 12 September 1944.  The applicant's date of birth shown on his DD Form 47, Record of Induction is 12 September 1947.  The applicant's date of birth on his 30 November 1966 DD Form 214 is 12 September 1947.  The applicant's date of birth as shown on his Standard Certificate of Live Birth, State of Oklahoma, is 12 September 1947.  The applicant's 5 August 1969 DD Form 214 should be corrected to reflect his correct date of birth.

16.  Army Regulation 635-5, in effect at the time of the applicant's release from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It established standardized policy for preparing and distributing the DD Form 214.  The instructions for the completion of Item 5a were, "Enter grade in which serving at time of separation, indicating whether permanent or temporary." Instructions for the completion of Item 5b were, "Enter pay grade, e.g., ‘E-8’ or
‘E-4’." Instructions for the completion of Item 9 (Date of Birth), of the DD Form 214, are, according to the applicable regulation, "Self-explanatory."

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The available evidence shows the highest verifiable rank and pay grade the applicant attained while serving on active duty was Private First Class, E-3.  The available evidence further shows that he received nonjudicial punishment and was reduced in rank and pay grade to Private, E-1.  The applicant was advanced to Private, E-2, between the dates of 25 February 1969, the date his nonjudicial punishment was culminated, and 25 July 1969, the date orders were published for him to return to the Continental United States to be released from active duty.

3.  On the date the applicant was released from active duty, he was serving in the rank and pay grade, Private, E-2; however, his DD Form 214 was prepared to show he was serving in the rank and pay grade, Private First Class, E-3.  The applicant's orders transferring him to the USAR show he was transferred to the USAR in the rank and pay grade, Private, E-2; however, when he was discharged from the USAR on 21 November 1972, he was discharged in the rank and pay grade, Private First Class, E-3.

4.  As noted in this Record of Proceedings, the applicant was released from active duty with temporary records and a Soldier's Affidavit because it appears some of his record were either lost or destroyed before he arrived at Fort Lewis for separation processing.

5.  The ABCMR has a long standing policy that it will not correct a record if it will leave an applicant worse off than when he came to the Board.  The rank and pay grade shown on the 5 August 1969 DD Form 214 will be left unchanged and uncorrected.  This DD Form 214 will not be changed to reflect the applicant's actual final verifiable active duty rank and pay grade.

6.  The applicant's date of birth is incorrectly entered on his 5 August 1969 DD Form 214.  The date of birth shown on this DD Form 214 is 12 September 1944.  The applicant's actual date of birth, as reflected on a previously issued DD Form 214, his induction record, and his birth certificate is 12 September 1947.  The applicant's 5 August 1969 DD Form 214 should be corrected to reflect his correct date of birth.

7.  Evidence shows that the applicant’s records contain administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_x__  ___x__  ___x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board determined that administrative error in the records of the individual should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to correctly reflect his date of birth on his 5 August 1969 DD Form 214 to show the date, 12 September 1947.




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          CHAIRPERSON