IN THE CASE OF:	

		BOARD DATE:	  18 February 2009

		DOCKET NUMBER:  AR20080018146 


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 date of induction, date of release, and rank on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, that he needs the requested information corrected for the purpose of his disability claim.  He states that his date of induction should be 30 November 1956, his release date should be 13 January 1959, and his rank at release was staff sergeant/pay grade E-5.

3.  The applicant provides a DD Form 214, a DA Form 1270 (Transfer or Release to Reserve Component of the Army), and two letters related to eligibility for medical treatment.

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 available records contained a single document which appears to be a pay record.

3.  The DA Form 1270 provided by the applicant indicates he initially entered the Army Reserve on 30 November 1956.

4.  The DD Form 214 the applicant submitted shows he entered active duty from the Army Reserve on 30 March 1957.  He was awarded the military occupational specialty of light weapons infantryman.  The highest rank he attained while serving on active duty was specialist four (temporary)/pay grade E-4.

5.  The applicant's DD Form 214; DA Form 1270; and Headquarters, Fort Riley, Letter Order Number 1-63, dated 8 January 1959 all indicate he was transferred back to the Army Reserve from active duty on 13 January 1959.

6.  The applicant's DD Form 214 indicates he was released from active duty with an honorable characterization of service in the rank of specialist four (temporary) after completing 1 year, 9 months, and 14 days of active duty service.  Headquarters, Fort Riley, Letter Order Number 1-63 shows that the applicant was transferred to the Army Reserve and promoted to the permanent rank of specialist four on 13 January 1959.

7.  The copy of the DD Form 214 provided by the applicant shows his signature in block 34.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.

9.  Army Regulation 635-5 also states that the signature of the Soldier indicates he or she has reviewed the form and accepts the information as being correct to the best of their knowledge.  It also states that the Soldier must sign the original in ink using a ballpoint pen; ensuring signature goes through on all copies.

10.  Army Regulation 635-5 states that a Soldier is separated from active duty in the rank held on the date of separation.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's records indicate that the applicant initially entered the Army Reserve on 30 November 1956 and entered active duty on 30 March 1957.  Therefore, his DD Form 214 showing his date of entry on active duty as 30 March 1957 is correct as currently constituted.

2.  The applicant's records indicate his DD Form 214 correctly shows that he was released from active duty on 13 January 1959.  Therefore, his DD Form 214 is correct as currently constituted.

3.  The applicant's records indicate his DD Form 214 correctly shows his rank on the date of separation as the rank of specialist four (temporary).  The Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  There was no available evidence nor did the applicant provide any evidence to show that the rank he held on the date of separation from active duty was in the grade of staff sergeant/pay grade E-5 as he contends.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080018146



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ABCMR Record of Proceedings (cont)                                         AR20080018146



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