IN THE CASE OF:
BOARD DATE: 19 AUGUST 2008
DOCKET NUMBER: AR20080009698
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 records be corrected to show that he retired in the rank and pay grade of sergeant (E-5).
2. The applicant states that he was promoted to the pay grade of E-3 twice. He states that he was promoted to the pay grade of E-3 in late 1969 and that he was again promoted to the pay grade of E-3 in late February 1970, which was in error. He states that he had already been promoted to the pay grade of E-3 and that he should have been promoted to the pay grade of E-4 in February 1970. He states that his promotion to the pay grade of E-4 on 14 April 1970 should have been his promotion to the pay grade of E-5.
3. The applicant provides no additional documentation in support of his 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 22 July 1969, the applicant enlisted in the Regular Army in Shreveport, Louisiana, for 3 years, in the pay grade of E-1. He successfully completed his training as a wireman.
3. The applicant's records show that he was promoted to the pay grade of E-2 on 27 July 1969; he was promoted to the pay grade of E-3 on 18 January 1970; and he was promoted to the pay grade of E-4 on 14 April 1970.
4. A review of the applicant's records does not show that he was twice promoted to the pay grade of E-3.
5. The applicant was honorably retired by reason of physical disability in the pay grade of E-4 on 7 October 1970 and he was placed on the Temporary Disability Retired List. The DD Form 214 that he was furnished at the time of his retirement shows his rank and pay grade as specialist (E-4).
6. 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 release from active duty, discharge, or retirement.
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 applicant's contentions have been noted. However, there is no evidence in the available records, nor has the applicant submitted any evidence to show that he was promoted twice to the pay grade of E-3.
3. His records show that he was promoted to the pay grade of E-3 on
18 January 1970 and that he was subsequently promoted to the pay grade of
E-4 on 14 April 1970. His rank and pay grade were properly annotated as specialist (E-4) on his DD Form 214 at the time of his retirement and in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.
4. In view of the foregoing, there is no basis for granting the applicant's request.
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.
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