IN THE CASE OF:
BOARD DATE: 16 September 2008
DOCKET NUMBER: AR20080010024
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 that his separation document (DD Form 214) be corrected to show the highest grade he held, E-4.
2. The applicant states that he believes that his DA Form 20, Enlisted Qualification Record, was altered to change the amount of time he served in pay grade E-4.
3. The applicant does not provide any additional documentation in support of his request.
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. The applicants military records show that he enlisted in the Regular Army on 11 July 1960, and was awarded the military occupational specialty of radar crewman.
3. On 22 November 1961, the applicant, then in pay grade E-2, was convicted by a special court-martial of being absent without leave (AWOL) from 4 September to 16 October 1961. His sentence included confinement at hard labor for three months.
4. The applicant was reduced to pay grade E-1 as a result of his sentence to confinement.
5. The applicant was promoted to pay grade E-2 on 22 February 1962, to pay grade E-3 on 10 May 1962, and to pay grade E-4 on 12 December 1962.
6. On 18 February 1963, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniformed Code of Military Justice, for operating a privately owned vehicle without post tags or a visitor permit. His punishment included a forfeiture of $10.00 pay for 1 month. His punishment did not include a reduction in grade.
7. The applicant was reduced to pay grade E-3 on 28 March 1963, due to unknown reasons.
8. On 23 August 1963, the applicant was honorably separated in pay grade E-3 with a date of rank of 28 March 1963.
9. Army Regulation 635-5, then and now in effect, states that you enter the pay grade and rank that an enlisted Soldier holds on the date of discharge on the Soldiers DD Form 214.
10. Title 10, U.S. Code, section 3964, states that enlisted members who are retired with less than 30 years of active service will be advanced to the highest grade they successfully held upon attaining 30 years of service based on active service and time spent on the retired list.
11. The Manual for Courts-Martial, 1951, Section 126e, states that enlisted soldiers who are sentenced to confinement will be reduced to pay grade E-1.
DISCUSSION AND CONCLUSIONS:
1. There are no provisions to enter a Soldiers highest grade held on his DD Form 214. The governing regulation specifies that you enter the Soldiers current rank and pay grade on the DD Form 214 issued at time of discharge. The provisions for highest grade held applies to the grade held on the Retired List, not for the grade entered on a DD Form 214. Besides, the applicant was not placed on the Retired List, so this provision did not apply to him.
2. While the reason for the applicants reduction from pay grade E-4 to pay grade E-3 is not contained in his records, the reduction orders are contained in his records. As such, a presumption of regularity must be applied, that what the Army did was correct.
3. In view of the foregoing, there is no basis for granting the applicants request.
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
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) AR20080010024
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ABCMR Record of Proceedings (cont) AR20080010024
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