IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014055 


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 pay grade shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be changed from specialist four (SP4)/E-4 to specialist five (SP5)/E-5.

2.  The applicant essentially states that he was serving as an SP5/E-5 at the time of his release from active duty.

3.  The applicant provides a Standard Form 88 (Report of Medical Examination), dated 12 November 1967; two letters from the National Personnel Records Center in St. Louis, Missouri, dated 17 December 2007 and 17 January 2008; a letter from the Army Review Boards Agency in St. Louis, Missouri, dated 19 March 2008; and correspondence from representatives of the American Legion, dated 7 August 2008, with a business card in support of this 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 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 show that he was inducted into the Army of the United States on 22 November 1965.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 16D (HAWK Missile Crewmember), and was later awarded MOS 94B (Cook).  He served in the Republic of Vietnam from 8 December 1966 to 12 November 1967 and was honorably released from active duty on 12 November 1967.

3.  The applicant requested that his rank and pay grade shown on his DD Form 214 be changed from SP4/E-4 to SP5/E-5.  His military records show that he was advanced from private/E-1 to private/E-2 on 22 March 1966, and that he was advanced to private first class/E-3 on 22 July 1966.  They also show that he was advanced to SP4/E-4 on 16 February 1967; however, he was reduced to private first class/E-3 effective 10 April 1967 after accepting nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for misconduct.  He was again advanced to SP4/E-4 on 18 July 1967, which is the rank, pay grade, and date of rank shown on his DD Form 214.  The applicant authenticated his DD Form 214 with his signature, attesting to the accuracy of the information contained on that form.  There are no orders in the applicant's military records which promote him from SP4/E-4 to SP5/E-5.

4.  The applicant provided a Standard Form 88, dated 12 November 1967, which shows that he listed his rank at the time as SP5.

5.  The applicant essentially stated that he was serving as a SP5/E-5 at the time of his release from active duty.

6.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty.  It established standardized policy for preparing and distributing the DD Form 214.  This regulation required that the rank and pay grade in which a person was serving at the time of separation [release from active duty] would be entered in items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) of this document.  This regulation also required that an indication would be made whether the rank was permanent (P) or temporary (T).

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank and pay grade shown on his DD Form 214 should be changed from SP4/E-4 to SP5/E-5.

2.  The Standard Form 88 provided by the applicant, which was also present in his military records, listing his rank as SP5 on 12 November 1967 was noted.  However, the entry on this document was entered by the applicant and there are no orders in his military records which show that he was promoted to SP5/E-5 at any time during his military service.  The applicant also authenticated his DD Form 214 with his signature, attesting to the accuracy of the information contained on that form, which clearly shows that his rank and pay grade at the time of his release from active duty was SP4/E-4.  The applicant did not provide any evidence such as leave and earning statements which show that he was being paid as an SP5/E-5 at the time of his release from active duty.  As a result, the entry on his 12 November 1967 Standard Form 88 showing that his rank at the time was SP5, by itself, does not begin to approach the threshold of proving, by a preponderance of the evidence, that he was serving as an SP5/E-5 at the time of his release from active duty.

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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War.  The applicant and all Americans should be justifiably proud of his service in arms.



      ________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)                                         AR20080014055



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ABCMR Record of Proceedings (cont)                                         AR20080014055



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