IN THE CASE OF:
BOARD DATE: 21 January 2009
DOCKET NUMBER: AR20080015661
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 that he be promoted to private first class/pay
grade E-3.
2. The applicant states he always believed for many years that he had made private first class. He states he does not think he was paid as a private first class and he knows it is not on his military records. He does not think he was demoted.
3. The applicant provides a copy of his reissued DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 3 October 1983 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 applicant's military personnel records show he enlisted in the Regular Army on 26 August 1982. He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 94B (Food Service Specialist).
3. Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to private/pay
grade E-2 on 26 February 1983. There is no entry showing he was promoted to private first class.
4. There are no orders in the applicant's military personnel record promoting him to private first class.
5. On 3 October 1983, the applicant was discharged by reason of unsatisfactory performance. He had completed 1 year, 1 month, and 8 days of active service that was characterized as under honorable conditions. Item 4a (Grade, Rate or Rank) and 4b (Pay Grade) of his DD Form 214 shows the applicant was a private/pay grade E-2 on the date of discharge.
6. ABCMR Docket AR2007001900, dated 10 April 2008, Record of Proceedings, changed the characterization of the applicant's discharge to honorable. Paragraph 3 of Consideration of Evidence contains the statement "The applicant attained the grade of private first class/E-3
."
DISCUSSION AND CONCLUSIONS:
1. There are no records or orders showing the applicant was promoted to private first class/pay grade E-3.
2. In view of the above, the statement contained in ABCMR Docket AR20070019001 Record of Proceedings appears to be an error. This is determined to be a harmless error in the Record of Proceedings as it did not affect the Board's decision concerning the characterization of service. However, this error does not constitute authority to now promote the applicant.
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 that 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) AR20080015661
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ABCMR Record of Proceedings (cont) AR20080015661
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