RECORD OF PROCEEDINGS


	IN THE CASE OF:	 


	BOARD DATE:	3 April 2008  
	DOCKET NUMBER:  AR20070018875 


	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.


x

	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 Items 5a (Grade, Rate or Rank) and 5b (Pay Grade), of 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 promoted to the rank and pay grade, Staff Sergeant, E-6, a short time before his discharge.  He adds that he did not realize he could get it changed.

3.  In support of his request, the applicant provided a copy of his DD Form 214; a copy of his promotion orders to the rank and pay grade, Staff Sergeant, E-6; and a copy of his discharge orders.

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 records show he enlisted in the Regular Army, for 3 years, on 5 June 1962.  He completed basic combat training at Fort Gordon, Georgia, and his advanced individual training at Byron, Georgia.  On completion of his training, he was awarded the MOS (Military Occupational Specialty) 177.00 (Air Defense Missile Crewman (Nike Hercules)).

3.  The applicant was honorably discharged, in the rank and pay grade of Specialist Four, E-4, on 4 June 1965, under the provisions of AR 635-200, at the expiration of his term of service.  At the time of his discharge, he had completed 3 years net active service, with no lost time.

4. The applicant's records show he reenlisted, in the Regular Army, for 3 years, on 14 February 1966.  He completed advanced individual training at Fort Knox, Kentucky, and was awarded the military occupational specialty (MOS) 05B (Radio Operator).

5.  The applicant was promoted to the rank and pay grade, Sergeant, E-5, with an effective date of 22 December 1967, by Special Orders Number 9, paragraph 27, prepared by Headquarters, 5th Infantry Division (Mechanized) and Fort Carson, Colorado, dated 9 January 1968.

6.  The applicant was promoted to the rank and pay grade, Staff Sergeant, E-6, with an effective date of 10 February 1969, by Special Orders Number 49, paragraph 40, prepared by Headquarters, 5th Infantry Division (Mechanized) and Fort Carson, Colorado, dated 18 February 1969.

7.  The applicant was honorably discharged, on 13 February 1969.  Item 5a, of the applicant's DD Form 214, shows he was serving in the rank of Sergeant, on the date of his discharge.  Item 5b, of the applicant's DD Form 214, shows he was serving in pay grade, E-5, on the date of his discharge.

8.  AR 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.'"

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 evidence shows the highest verifiable rank and pay grade the applicant attained while he served on active duty was Sergeant, E5.  The applicant was promoted to this rank and pay grade with an effective date and date of rank of 22 December 1967.

3.  The evidence does show that orders were published for the promotion of the applicant to Staff Sergeant, E-6; however, he did not serve in this rank and pay grade while he was on active duty and was not serving in this rank and pay grade on the date of his discharge.

4.  The evidence shows the effective date of the applicant's promotion was 10 February 1969; but, the promotion orders were not published until 18 February 1969, four days after he had been discharged from the Army.

5.  In view of the foregoing, there is no basis for granting the applicant's request for a correction to his DD Form 214 to show he was discharged from active duty in the rank and pay grade, Staff Sergeant, E-6.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x__  __x____  __x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




____x________
          CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.