IN THE CASE OF:
BOARD DATE: 15 October 2008
DOCKET NUMBER: AR20080013175
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 (Separation Document) to show that he was promoted to the rank of sergeant first class, pay grade E-7.
2. The applicant states, in effect, that his platoon sergeant promised him that if he crossed a mine field he would give him E-7 stripes.
3. The applicant provides no additional documents 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. The applicant's military service records show that he was inducted into the Army of the United States on 2 April 1968. Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman). The highest rank he attained while serving on active duty was specialist four (SP4), pay grade
E-4.
3. Item 33 (Appointments and Reductions) of the applicants DA Form 20 (Enlisted Qualification Record) shows he held the rank of SP4 and he was not in a promotable status and that this was the highest grade that he held.
4. The applicants DD Form 214, dated 16 March 1970, shows that at the time of separation he held the rank of SP4, pay grade E-4 and his date of rank was
11 March 1969.
5. Army Regulation 635-5 prescribes that separation documents are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. This regulation establishes standardized policy for preparing and distributing these separation documents. It provides that the active duty rank at the time of separation will be entered on the separation document.
6. Army Regulation 15-185, is the regulation that governs the operation of the Board, sets forth the procedures for processing requests to correct military records and states, in pertinent part, that the Army Board for Correction of Military Records begins its consideration of each case with the presumption of administrative regularity and that the burden of proving error or injustice by a preponderance of the evidence rests with the applicant.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his DD Form 214 should be corrected to show he was promoted to SFC/E-7 was carefully considered and found to be without merit.
2. There is nothing in the available record to show the applicant was promoted beyond SP4/E-4. By regulation, the active duty/grade/rank held at the time of separation will be entered on the DD Form 214. The applicant was a SP4/E-4 at the time of separation and this rank was appropriately entered on his DD Form 214. There is insufficient evidence to support the requested relief in this case.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.
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
____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) AR20080013175
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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