IN THE CASE OF:
BOARD DATE: 18 June 2009
DOCKET NUMBER: AR20090001186
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 item 3 (Grade, Rate, Rank and Date of Appointment) on his DD Form 214 (Report of Separation from the Armed Forces of the United States) be corrected to show the rank of specialist third class. He also requests that an Honorable Discharge Certificate from the U.S. Army Reserve (USAR) be corrected to show the rank of specialist third class.
2. The applicant states that it was a typographical error.
3. The applicant provides an Honorable Discharge Certificate from the USAR; discharge orders from the USAR; orders, dated 26 July 1955; redeployment orders, dated 25 January 1956; and a copy of his DD Form 214 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 applicants military records are not available to the Board for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the applicants records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case.
3. The applicant was inducted into the Army of the United States and entered active duty on 17 March 1954. He served as anti-aircraft artillery radar crewman and was honorably released from active duty on 10 March 1956 and transferred to the USAR to complete his remaining service obligation.
4. Item 3 of the applicant's DD Form 214 shows the entry, "SP2 (T) 21 Dec 55" [specialist second class (temporary) 21 December 1955]. Item 38 (Remarks) of his DD Form 214 states, in pertinent part, "Item 3: Pvt-2 (P) 17 Jul 54" [private two (permanent) 17 July 1954].
5. The applicant provided orders, dated 26 July 1955, which show he was temporarily appointed to specialist third class. He also provided redeployment orders, dated 25 January 1956, which shows his rank as specialist third class.
6. The available records contain orders, dated 9 March 1956, which show the applicant was released from active duty on 10 March 1956 in the rank of specialist second class.
7. The applicant provided discharge orders, dated 26 February 1962, which show he was discharged from the USAR in the rank of specialist five effective 28 February 1962.
8. The applicant's Honorable Discharge Certificate, dated 28 February 1962, shows he was discharged from the USAR in the rank of specialist five.
DISCUSSION AND CONCLUSIONS:
1. The applicant provided orders which show he was temporarily appointed to specialist third class on 26 July 1955. It cannot be determined at this last date if the appointment orders had been revoked for some reason. However, his DD Form 214 shows he was appointed to the temporary rank of specialist second class on 21 December 1955 and his discharge orders, dated 9 March 1956, show he was released from active duty in the rank of specialist second class. Therefore, the orders provided by the applicant are not sufficient as a basis for amending item 3 on his DD Form 214.
2. Evidence of record shows the applicant was discharged from the USAR in the rank of specialist five in February 1962. Therefore, there is no basis for granting the applicant's request to amend his rank on his Honorable Discharge Certificate from the USAR.
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) AR20090001186
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ABCMR Record of Proceedings (cont) AR20090001186
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