IN THE CASE OF:
BOARD DATE: 25 November 2008
DOCKET NUMBER: AR20080013665
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 rank and grade be restored to specialist four/E-4.
2. The applicant states, in effect, that he was in the hospital at the time he was reduced in grade and denied permission to defend himself.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from the Armed Forces of the United States) 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 applicants military records are not available to the Board for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the applicants records were lost or destroyed in that fire. This decision is being made on the only available evidence the applicant's DD Form 214 and his self-authored statement.
3. The evidence of record shows the applicant served in the Regular Army from 15 July 1953 through 16 July 1956. He was trained in, awarded, and served in military occupational specialty (MOS) 941.20 (Cook). He was honorably released from active duty and credited with 3 years of active Federal service. His DD Form 214 shows his rank and grade as private first class/E-3 (Temporary) and his date of rank as 16 June 1956. This form also shows he had 2 days of lost time.
4. 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 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's official record is presumed to have been destroyed in a fire in 1973 at the National Personnel Records Center. The only available evidence for review was his DD Form 214. This document shows his rank and grade as private first class/E-3 (Temporary) and his date of rank as 16 June 1956.
2. The applicant's contentions were carefully considered; however, in the absence of any evidence to the contrary, administrative regularity is considered in his case.
3. 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 did not submit any evidence that would satisfy this requirement at this time.
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) AR20080013665
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