IN THE CASE OF:	  

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080014171 


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 the rank and pay grade shown on his discharge document.

2.  The applicant states, in effect, he was promoted to the rank of specialist four (SP4)/pay grade E-4 prior to his separation from active duty; however, due to a clerical error, his discharge document shows his rank as private first class (PFC)/ pay grade E-3.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of
12 January 1970 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 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 personnel records show he was inducted into the Army of the United States for a period of 2 years on 11 June 1968.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 13A (Cannoneer).

3.  The applicant's military personnel records contain a DA Form 20 (Enlisted Qualification Record).  Item 33 (Appointments and Reductions) shows the applicant was appointed in the grade of private (PV1)/pay grade E-1 on
11 June 1968, advanced to the grade of private (PV2)/pay grade E-2 on
11 October 1968, and advanced to the grade of PFC/pay grade E-3 on
22 November 1968.  This item also shows the authority for his advancement to the rank of PFC was Headquarters, Americal Division, Special Orders Number
347 (1968).

4.  The applicant's military personnel records contain a copy of Headquarters,
Americal Division (Vietnam), Special Orders Number 347, dated 12 December 1968.  These orders show, in pertinent part, the applicant was advanced to the rank of PFC, effective 22 November 1968.

5.  The applicant's military personnel records contain a copy of Headquarters,
Americal Division (Vietnam), General Orders Number 2284, dated 6 April 1969.  These orders show the applicant was awarded the Army Commendation Medal and, in pertinent part, that his rank at the time the order was published was
PFC.

6.  The applicant's military personnel records contain a DA Form 1811 (Physical and Mental Status on Release from Active Service), dated 12 January 1970, that shows the applicant was considered physically qualified for separation and his rank at that time was PFC.  This document also shows that the captain serving as Assistant Adjutant certified the document with his signature.

7.  The applicant's military personnel records are absent a copy of any promotion orders or instrument documenting his promotion to the rank of SP4.





8.  The applicant's military personnel records contain a copy of Headquarters,
U.S. Army Personnel Center, Fort Lewis, Washington, Special Orders Number 12, dated 12 January 1970.  These orders show, in pertinent part, that the 
applicant was released from active duty (REFRAD) effective 12 January 1970 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  These orders also indicate that his rank was SP4.

9.  The applicant's DD Form 214, issued at the time of his separation, shows in Item 5a (Grade, Rate or Rank) the entry “PFC,” in Item 5b (Pay Grade) the entry “E-3,” and in Item 6 (Date of Rank) the entry “22 Nov 68.”  This document also shows the applicant was honorably REFRAD on 12 January 1970 after having completed 1 year, 7 months, and 2 days of net active service and transferred to the USAR Control Group (Annual Training) to complete his remaining military service obligation.  Item 32 (Signature of Person Being Transferred or Discharged) shows the applicant placed his signature on the document indicating he had reviewed the DD Form 214 prior to his REFRAD.

10.  The applicant's military personnel records contain a DA Form 2376 (Notification to State Adjutants General - Release from Active Duty of Obligated Reservist), undated, that shows the Assistant Adjutant, U.S. Army Personnel Center Transfer Station, Fort Lewis, Washington notified the Adjutant General, State of Minnesota, St. Paul, Minnesota that the applicant was REFRAD on
12 January 1970 and should arrive home on or about 22 January 1970.  This document also shows that applicant’s rank at the time was PFC.

11.  The applicant's military personnel records contain a USAAC Form 743 (Enlisted Short Accession Analysis Data Sheet), dated 16 February 1970, that shows in Item 11 - 12 (Grade) the abbreviation “PFC” and (grade) code “3.”

12.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  This Army regulation states that the purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or 

Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, 
Officer Qualification Record, and orders.  Paragraph 23 (Item 5a - Grade, Rate or Rank; Item 5b - Pay Grade, and Item 6 - Date of Rank) states, “Self-explanatory.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the rank and pay grade on his DD Form 214 should be corrected to show he was REFRAD in the grade of SP4/E-4.

2.  The evidence of record shows that Special Orders advanced the applicant to the rank/grade of PFC/E-3, effective 22 November 1968.

3.  The evidence of record shows that the applicant’s REFRAD orders indicate his rank was SP4.  However, with the exception of this one record, there is no other evidence that the applicant was promoted to, or held the rank/grade of SP4/E-4 during the period of service under review.  In this regard, there are no promotion orders, promotion instrument, or any other evidence showing the applicant was promoted to the rank/grade of SP4/E-4.  Moreover, the overwhelming preponderance of evidence shows the applicant’s rank/grade at the time he was REFRAD and transferred to the USAR was PFC/E-3.  Thus, the evidence of record fails to support the applicant’s claim.  Therefore, the applicant is not entitled to correction of his records in this case.

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.

ABCMR Record of Proceedings (cont)                                         AR20080014171



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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