IN THE CASE OF:
BOARD DATE: 8 July 2008
DOCKET NUMBER: AR20080006375
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his record be corrected to show that he was promoted to specialist four (SP4)/E-4.
2. The applicant states, in effect, that the company clerk told him that he had already been promoted to SP4/E-4 before he received an Article 15 which reduced him from private first class (PFC)/E-3 to private (PVT)/E-2. He contends that he should have been reduced from SP4/E-4 to PFC/E-3. He now wishes to claim any money by having his rank corrected. He also contends that he "has Agent Orange" [sic] from the Republic of Vietnam (RVN) and he wants his true rank reflected on his headstone.
3. The applicant did not provide additional documentary evidence in support of this application.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 4 February 1965, the applicant was inducted into the Army of the United States. He was trained in, awarded, and served in military occupational specialty (MOS) 95B (Military Police). He attained the grade of PFC/E-3. On 27 January 1967, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement). On 3 February 1971, he was honorably discharged from the USAR upon completion of his statutory military obligation.
3. The applicant's record shows that he was promoted to PVT/E-2 on 4 June 1965. On 9 November 1965, he was promoted to PFC/E-3.
4. On 1 August 1966, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for quitting his post without being properly relieved. He was a PFC/E-3 when he received the NJP. His punishment consisted of a reduction from PFC/E-3 to PVT/E-2.
5. On 6 October 1966, the applicant was again promoted to PFC/E-3, the rank he held until his release from active duty.
6. There is no evidence in the applicant's record that he was recommended for or promoted to SP4/E-4. The applicant has not provided any evidence to show he was promoted to SP4/E-4.
7. There is no evidence the applicant served in the RVN while in the Army, although he contends, in effect, he has an illness presumptively attributable to Agent Orange as a result of his Vietnam service. His record shows that he served in Alaska for 15 months. He did not receive any awards or decorations associated with service in the RVN. However, there is some evidence that he served in the U.S. Marine Corps subsequent to his service in the Regular Army, and he may have served in the RVN during that period of service.
DISCUSSION AND CONCLUSIONS:
1. The applicant served in the Regular Army from 4 February 1965 through
27 January 1967.
2. The applicant was initially promoted to PFC/E-3 on 9 November 1965. He was reduced from PFC/E-3 to PVT/E-2 as a result of NJP on 4 August 1966. He was promoted again to PFC/E-3 on 6 October 1966, the rank and grade he held at the time of his release from active duty.
3. There is no evidence that the applicant was recommended for or promoted to SP4/E-4 in his official record. At the time he accepted NJP action he was a PFC/E-3. In the absence of evidence to the contrary, administrative regularity is presumed in the applicant's record.
4. 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 did not submit any evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xxx___ __xxx___ __xxx___ 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.
XXX
_______________________
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080006375
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ABCMR Record of Proceedings (cont) AR20080006375
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