DOCKET NUMBER:  AR20090006584 


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 an upgrade of his discharge and correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show his rank/grade as that of a corporal (CPL)/E-4 instead of private (PV2)/E-2.

2.  The applicant states that he gave six years of good service and was promised promotion to CPL/E-4.

3.  The applicant provides a copy of his DD Form 214, dated 7 May 1954, 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 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 applicant’s 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's reconstructed record shows he enlisted in the Regular Army for a period of 3 years on 29 October 1948 and was discharged on 30 May 1951 for the purpose of immediate reenlistment.  A copy of his DD Form 214 for this period of service is not available for review with this case.

4.  The applicant’s reconstructed records further show he reenlisted in the Regular Army for a period of 3 years on 31 May1951 in the rank/grade of private (PVT)/E-1 at Fort Hood, TX.  He was reassigned to the 2nd Armored Division, Germany, on or about 14 July 1951, completed a 6-week Combat Medical Technician course, and held military occupational specialty 1666 (Medical Specialist).  

5.  On 23 October 1951, while a member of Headquarters and Headquarters Reserve Company, 2nd Armored Division, Germany, the applicant pleaded not guilty at a Special Court-Martial to one specification of missing company movement through neglect on or about 7 October 1951.  The Court found him guilty and sentenced him to one month of hard labor and a forfeiture of $60.00 pay for one month.  The sentence was adjudged and approved on 23 October 1951.

6.  The applicant’s reconstructed records show he was promoted to the rank/grade of private (PV2)/E-2 (Permanent) on 11 August 1952 and to the rank/grade of private first class (PFC) (Temporary) on 25 June 1953.

7.  On 30 June 1953, while a member of Company C, 48th Medical Battalion, 2nd Armored Division, Germany, the applicant pleaded guilty at a Summary Court-Martial to two specifications of being absent without leave (AWOL) on 28 June 1953 and one specification of breaking restriction on 28 June 1953.  The Court sentenced him to one month of restriction and a forfeiture of $60.00 pay for one month.  The sentence was adjudged on 30 June 1953 and approved on 1 July 1953.



8.  On 20 August 1953, Company C, 48th Armored Medical Battalion, 2nd Armored Division, published Special Orders Number 35, announcing the applicant’s permanent rank/grade of PV2/E-2 effective 20 August 1953. 

9.  On 31 December 1953, the applicant pleaded guilty at a Summary Court-Martial to one specification of wrongfully and unlawfully transporting a German female in a government vehicle on or about 26 December 1953.  The Court sentenced him to a forfeiture of $25.00 pay.  The sentence was adjudged and approved on 31 December 1953.

10.  There is no indication in the applicant’s records that he was promoted to the “permanent” rank/grade of PFC/E-3 or “CPL/E-4.” 

11.  The facts and circumstances surrounding the applicant's discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged in accordance with Section VI of Special Regulation (SR) 615-360-5 and Army Regulation 615-365 on 7 May 1954 with a character of service of under honorable conditions (general).  This form also shows he completed 2 years, 11 months, and 1 day of creditable active service during this period of reenlistment and a total of 5 years, 5 months, and 24 days of creditable active service.  Item 3 (Grade, Rate, Rank, and Date of Appointment) shows the entry "PV2 (Permanent) 20 August 1953." 

12.  Special Regulation 615-360-5, in effect at the time, provided for the discharge of enlisted personnel of the Regular Army if they had 3 months or less to serve upon their return from overseas.  This discharge would be accomplished by reason of convenience of the government.  At the time of the applicant’s discharge, Army policy and procedure for the separation of enlisted Soldiers for the convenience of the government was provided in Army Regulation 615-365.  

13.  Army Regulation 635-200 (Personnel Separations), paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.






DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded and his records should be corrected to show his rank/grade as a CPL/E-4.  

2.  With respect to the applicant's discharge, there are no facts and circumstances pertaining to the events which led to the applicant’s discharge in the record.  However, there is a properly constituted DD Form 214 on file, signed by the applicant that documents the characterization and the reason for the discharge.  Absent evidence to the contrary, the Board must presume regularity in the discharge process.  Furthermore, given the applicant's three instances of courts-martial and record of lost time it appears that the applicant’s discharge accurately reflects his overall record of service.  

3.  In order to justify correction of a military record, the applicant must show, 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.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable discharge.

4.  With respect to the applicant's rank/grade, the evidence of record shows that the applicant was promoted to the permanent rank/grade of PV2/E-2 on 20 August 1953.  There is no evidence in his records and he did not provide any evidence that shows he was promoted or promised a promotion to the rank/grade of CPL/E-4.  In the absence of substantiating evidence to the contrary, it is presumed that the applicant’s rank/grade shown on his DD Form 214 is correct and reflects his rank and grade at the time of separation.

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)                                         AR20090006584



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ABCMR Record of Proceedings (cont)                                         AR20090006584



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