IN THE CASE OF:	  

		BOARD DATE:	       18 September 2008

		DOCKET NUMBER:  AR20080010203 


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, correction of his DD Form 214 (Report of Separation from Active Duty) for the period ending 31 October 1976 to show his retired pay grade as captain (CPT), O-3.

2.  The applicant states that he served as an officer from October 1966 until June 1973.  At retirement, his DD Form 214 showed his pay grade as staff sergeant (SSG), E-6.  He states that he should have been given a new DD Form 214 after a period of 10 years.  

3.  The applicant provides a copy of his expired DD Form 2 (United States Uniformed Services Identification Card); his Form 1099-R (Distributions from Pensions, Annuities, Retirement, or Profit-Sharing Plans, IRAs, Insurance, Contracts, etc.); and his Retiree Account Statement. 

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.  After having prior service in the U.S. Marine Corps, the applicant enlisted in the Regular Army on 30 September 1963 in the rank of corporal, E-4.  He was promoted to sergeant (SGT), E-5 on 30 January 1964.

3.  He was honorably discharged on 24 October 1966 in the rank of SGT, E-5 to accept a commission as an officer in the Army.  

4.  On 25 October 1966, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant with a concurrent call to active duty.  

5.  The applicant was promoted to the rank of CPT in the Army of the United States on 25 October 1968.  

6.  He was released from active duty on 10 June 1973 as a CPT in the U.S. Army Reserve.  

7.  The applicant enlisted in the Regular Army on 11 June 1973 in the rank of SGT, E-5.

8.  He was promoted to the rank of staff sergeant (SSG), E-6 on 1 January 1974 in the Regular Army.  

9.  On 3 May 1976, the applicant submitted an application for voluntary retirement upon completion of 20 years, 2 months, and 20 days total active service.  

10.  The applicant was promoted to major in the U.S. Army Reserve with an effective date of 25 July 1976.

11.  A DA Form 3713 (Data for Retired Pay), dated 31 August 1976, shows his active duty grade as SSG and his retired pay grade as E-6.  This document shows his highest grade attained as major, O-4.   

12.  Headquarters, 172nd Infantry Brigade, Special Orders Number 125, dated 4 May 1976, released the applicant from active duty on 31 October 1976 and placed him on the retired list 1 November 1976 in the rank of SSG.  

13.  On 11 October 1986, the applicant was advanced on the retired list in the rank of CPT and pay grade O-3.
14.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.

15.  Under the provisions of Army Regulation 600-39, the Dual Component Program provided for individuals serving in the Regular Army in an enlisted or warrant officer status to hold a commission in the Army Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the Regular Army on 30 September 1963 and was discharged on 24 October 1966 to accept a commission as an officer in the Army.

2.  The applicant was appointed as a commissioned officer in the U.S. Army Reserve and was ordered to active duty on 25 October 1966.  

3.  The evidence of record shows he served on active duty as a CPT in the 
U.S. Army Reserve from 25 October 1966 through 10 June 1973.  

4.  The applicant enlisted in the Regular Army on 11 June 1973 and was promoted to the rank of SSG on 1 January 1974.

5.  The applicant was released from active duty and placed on the retired list on 1 November 1976 in the rank of SSG.  

6.  By regulation, the applicant’s DD Form 214 for the period ending 31 October 1976 is meant to reflect his status as of his last day of active duty on 31 October 1976.  As of that date, he was a SSG.  Therefore, his DD Form 214 for the period ending 31 October 1976 accurately reflects his rank as SSG.

7.  The applicant was advanced on the retired list to CPT, O-3 effective 11 October 1986.  The 29 September 1987 letter which advanced him on the retired list should be sufficient for an identification card facility to issue him a new identification card.  


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  __xx____  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.



      _________xxxx_________
               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)                                         AR20080010203



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ABCMR Record of Proceedings (cont)                                         AR20080010203



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