IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080013670 


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 correction of his records to show he was separated in the rank/grade of sergeant (SGT)/E-5 instead of corporal (CPL)/E-4.

2.  The applicant states that during the last 3 months of his military service, he performed duties of acting SGT because promotions were frozen at the time.  He adds that he believes he deserves to be promoted to SGT and have his records corrected to reflect this promotion.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  DD Form 214 (Report of Separation from the Armed Forces of the United States), dated 25 September 1953;

	b.  DD Form 215 (Correction to DD Form 214), dated 30 April 2008;

	c.  U.S. Army Human Resources Command, Alexandria, Virginia, Permanent Order 121-15 and certificate, dated 30 April 2008, showing award of the Purple Heart;

	d.  Certificate of Recognition (Cold War Certificate);

	e.  Republic of Korea Letter of Appreciation, dated 25 June 2000;

	f.  Honorable Discharge Certificate, dated 23 January 1959;
	g.  DA Form 493 (Separation Qualification Record), dated 25 September 1953;

	h.  Headquarters, Antilles Command, U.S. Army Caribbean, Fort Brooke, Puerto Rico, memorandum, dated 6 February 1959;

	i.  Headquarters, 7502d AU Personnel Center, Fort Buchanan, Puerto Rico, letter of transfer or return to Reserve Component, dated 25 September 1953;

	j.  Department of Veterans Affairs (DVA) notification of transfer of records, dated 2 February 1961; and 

	k.  Letter, dated 25 June 2008, from the applicant's member of Congress.

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.  The applicant’s 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 applicant’s records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.

3.  With prior enlisted service, the applicant's DD Form 214 shows that he was inducted into the Army of the United States and entered active duty in San Juan, Puerto Rico, on 22 January 1952 in the rank/grade of private (PVT)/E-1, and that he was trained in military occupational specialty 1745 (Light Weapons Infantryman).  This form also shows the applicant's most significant assignment was with B Company, 14th Infantry Regiment.

4.  The applicant’s DD Form 214 further shows that he completed 1 year, 8 months, and 4 days of creditable military service during the period covered by the DD Form 214, 1 year and 21 days of which was foreign service.  He was honorably separated and transferred to the U.S. Army Reserve Control Group on 25 September 1953.

5.  Item 3 (Grade, Rate, Rank, and Date of Appointment) of the applicant's DD Form 214 shows the entry "CPL(T) 10 FEB 53," indicating that he was appointed to the temporary rank of CPL on 10 February 1953.

6.  Item 38 (Remarks) of the applicant's DD Form 214 shows the entry "Item #3 Pvt-2(P) 22 May 52," indicating that the highest permanent rank/grade the applicant attained was private (PV2)/E-2 effective 22 May 1952.

7.  There is no indication in the applicant's records that he was appointed as a SGT or as an acting SGT.  Additionally, there are no special orders in his records that show he was promoted or advanced to SGT.

8.  The applicant submitted a copy of his DA Form 493, dated 25 September 1953.  Item 18 (Grade Held) of this form shows he held the grade of CPL at the time he was separated.

9.  The applicant also submitted a copy of Headquarters, Antilles Command, memorandum dated 6 February 1959, which shows that he was discharged from the U.S. Army Reserve on 23 January 1959 in the rank of CPL.

10.  Army Regulation 635-5 (Personnel Separations), in effect at the time, established uniform administrative procedures and separation forms to be used in connection with the relief from active duty or complete separation of enlisted and warrant/commissioned officer personnel.  The purpose of the separation document is to provide the individual with complete and accurate documentary evidence of their military service.  This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  Item 3 of the version in effect at the time showed the grade in which an enlisted Soldier was serving at the time of separation with an indication whether it was a permanent or a temporary grade.  Additionally, this block also shows the date of rank for the grade shown.  If the date of rank is different from the date of appointment, the date of appointment is entered in item 38.  If the grade at the time of separation was not permanent, the permanent grade, date of appointment, and date of rank if different from the date of appointment is entered in item 38.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was appointed to the temporary rank of CPL on 10 February 1953.  This temporary rank is correctly shown on his DD Form 214.  There is no evidence that the applicant performed duties of a SGT or that he was appointed, advanced, or promoted to SGT.  The evidence of record further shows that the highest permanent rank the applicant attained was that of PV2/E-2 on 22 May 1952.  There is no evidence that the applicant was advanced or permanently appointed beyond the rank of PV2.

2.  There is no evidence in the available records nor did the applicant provide documentation to substantiate his SGT/E-5 grade.  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 evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief.

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.



      _________XXX________________
                 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)                                         AR20080013670



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ABCMR Record of Proceedings (cont)                                         AR20080013670



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