IN THE CASE OF:
BOARD DATE: 23 September 2008
DOCKET NUMBER: AR20080012935
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 Item 3 (Grade, Rate, Rank, and Date of Appointment) of his separation document (DD Form 214) be corrected to show he was discharged as a corporal (CPL) not as a private (PVT).
2. The applicant states, in effect, that he was court-martialed on December 1954 and sentenced to serve 5 months in confinement. However, his colonel disapproved the sentence and, therefore, he was never reduced to a PVT. He states that he would like to have his DD Form 214 corrected because he is doing business with the Department of Veterans Affairs.
3. The applicant provides a copy of his DD Form 214.
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 applicant's military records are not available for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the applicant's records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.
3. The applicant was inducted into the Army of the United States on 13 January 1953. He completed the necessary training and was awarded the military occupational specialty (MOS) 11B (Light Weapons Infantryman).
4. He served continuously on active duty until he was honorably released from active duty and transferred to the U.S. Army Reserve on 4 March 1955. He completed 1 year, 11 months, and 29 days of Net Service For Pay Purposes and he accrued 52 days of lost time.
5. Item 3 of his DD Form 214 shows the entry "PVT-1 (P) 20 Dec 54."
6. The available evidence does not contain any promotion or reduction orders that show the applicant was advanced to CPL nor does it contain a copy of a court-martial proceeding.
7. Special Regulation 615-360-1 (Enlisted Personnel), then in effect, established the standardized policy for preparing and distributing the DD Form 214. This regulation states, in pertinent part, that you enter the grade in which serving at the time of separation, indicating whether permanent or temporary and the date of appointment.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214, item 3 should be corrected to show the rank of CPL, instead of PVT.
2. The available evidence does not show the applicant was promoted beyond the rank and pay grade of PVT/E-1. However, the applicants date of rank to PVT is 20 December 1954, which is well after his induction date; it would appear he was reduced to PVT on this date. While there is no evidence of a court-martial conviction, he accrued 52 days of lost time. Therefore, he is not entitled to correction of his DD Form 214 to show he was separated in the rank of CPL, and he has established no basis for such a correction.
3. In the absence of a showing of material error or injustice, records should not be changed.
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) AR20080012935
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ABCMR Record of Proceedings (cont) AR20080012935
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