IN THE CASE OF:
BOARD DATE: 23 October 2008
DOCKET NUMBER: AR20080013979
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 4a (Grade, Rate or Rank) of his separation document (DD Form 214) be corrected to show his rank as sergeant not specialist five (SP5).
2. The applicant states, in effect, that his rank was converted to sergeant as a result of a Lateral appointment in 1967. He worked hard to get sergeant stripes and he would like his DD Form 214 to reflect that he was a sergeant. The applicant finally adds that when he dies, he will receive a grave marker from the Veterans Administration and he wants it to show his rank as sergeant.
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, and 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 record shows that he enlisted in the Regular Army and entered active duty on 27 March 1965, and was trained in and awarded military occupational specialty (MOS) 45C (Artillery Repairman).
3. The applicant's Enlisted Qualification Record (DA FORM 20) shows he was promoted to specialist Five (SP5) on 25 November 1966.
4. The applicant's Official Military Personnel File (OMPF) contains Headquarters, US Army Personnel Center, Fort Dix, New Jersey Special Orders Number 66, dated 6 March 1968 that shows the applicants rank was SP5/E-5.
5. On 7 March 1968, the applicant was honorably discharged after completing
2 years, 11 months, and 11 days of active military service. Item 4a of the DD Form 214 issued to the applicant contains an entry indicating his rank was SP5.
6. Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time of the applicant's discharge, provided the Army's enlisted personnel management policy. Section X, Chapter 2, provided the policy for lateral appointments, and provided provisions for the lateral appointment of a specialist to an NCO in the same pay grade.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention, in effect, that he was laterally appointed from SP5 to sergeant in 1967 and that Item 4a of his DD Form 214 should reflect the rank of sergeant instead of SP5 was carefully considered and found to be without merit. The applicants DA Form 20 shows his rank was SP5, and Special Orders 66 in his OMPF confirms that his rank was SP5.
2. Items 5a and 5b of the applicants DD Form 214 accurately documents his rank and pay grade. There is no evidence that supports the applicant received a lateral appointment from SP5 to sergeant.
3. Further, the applicant's 7 March 1968 DD Form 214 confirms he held the rank and pay grade of SP5/E-5 on the date of his discharge, and the applicant authenticated this document with his signature on the date of his separation. In effect, his signature was his verification that the information contained on the
DD Form 214, to include his rank and pay grade, were correct at the time the DD Form 214 was prepared and issued. Therefore, in view of the facts of this case, there is no evidence to support granting the requested relief at this late date.
4. 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.
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.
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