BOARD DATE:	 8 October 2009

		DOCKET NUMBER:  AR20090008471 


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 records to show he was held as a prisoner of war (POW) and that he retired in pay grade E-8.

2.  The applicant states, in effect, he is terminally ill and he would like his records corrected as soon as possible.

3.  The applicant provides a copy of his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard of Texas (TXARNG)) 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.  A DD Form 4 (Enlistment Record - Armed Forces of the United States) shows the applicant enlisted in the TXARNG on 23 September 1962.  Item 32 (Prior Service) shows he entered active duty in the Army of the United States (AUS) on 4 January 1943 and he was honorably discharged in the rank of private first class [pay grade E-3] on 6 January 1946.  It also shows he enlisted in the Army National Guard of the United States (ARNGUS) on 23 September 1947 and he was honorably discharged in the rank of master sergeant (MSG)/pay grade E-7 on 22 September 1962.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 2 (Grade), the entry "PSG" [platoon sergeant];

	b.  item 3 (Date of Rank), the entry "560305" [5 March 1956]; and

	c.  item 33 (Appointments and Reductions) that he was promoted to the rank of MSG [pay grade E-7] with a date of rank (DOR) of 5 March 1956 per Headquarters, 141st Infantry, Special Orders Number 9.  This item also shows the applicant held the ranks of MSG/pay grade E-7, sergeant first class (SFC)/pay grade E-7, and PSG/pay grade E-7 during his military service.

4.  Headquarters, 249th Signal Battalion, TXARNG, Dallas, TX, Special Orders Number 31, dated 30 October 1974, show the applicant was laterally appointed to PSG [E-7] effective 1 November 1974 with a DOR of 5 March 1956.

5.  The applicant's NGB Form 22 shows he enlisted in the TXARNG on 23 September 1962, he was honorably discharged on 15 July 1975, and transferred to the U.S. Army Reserve (USAR) Retired Reserve.  At the time he had completed 12 years, 9 months, and 22 days of net service this period and 30 years, 9 months, and 25 days of total service for pay purposes.  Item 3 (Grade) shows the entry "PSG."

6.  TXARNG, Austin, TX, Special Orders Number 172, dated 8 September 1975, show the applicant was honorably discharged from the ARNG on 15 July 1975 and transferred to the USAR (Retired Reserve).  These orders also show the applicant's rank was "PSG."

7.  A DD Form 108 (Application for Retired Pay Benefits), dated 15 February 1984, shows the applicant applied for his retired pay to begin on 15 April 1984.  Item 5 (Highest Grade Held) shows the applicant entered "PSG E-7."  The applicant also placed his signature on the document.

8.  U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, Orders P-03-001209, dated 26 March 1984, show the applicant was retired and placed on the AUS Retired List on 15 April 1984 in the retired grade of PSG (E-7).

9.  There are no orders or other evidence in the applicant's military personnel records that shows he was appointed, advanced, or promoted to pay grade E-8. There is also no evidence that shows the applicant was placed on the retired list in pay grade E-8.

10.  There is no evidence in the applicant's military personnel records that shows he was in a POW status.

11.  A search of the National Archives and Records Administration Access to Archival Databases - World War II, Korean War, and Vietnam War POW data files failed to show the applicant was a POW during any of these wars.

12.  A search of the Defense Technical Information Center Defense Prisoner of War/Missing Personnel Office - Korean War, Vietnam War, and Cold War data files failed to show the applicant was a POW during any of these wars/periods.

13.  Title 10, U.S. Code, section 3961, provides the legal authority for the retired grade of Army personnel on the Retired List.  It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the regular or reserve grade that he or she holds on the date of his or her retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was a POW and that he was honorably discharged and placed on the Retired List in pay grade E-8.

2.  There is no evidence of record and the applicant provides insufficient evidence to show he was in a POW status at any time during his military service.  Therefore, he is not entitled to correction of his records in this instance.

3.  The applicant was promoted to the rank of MSG (E-7) with a DOR of 5 March 1956.  He also served in the rank of SFC (E-7) and he was laterally appointed to the rank of PSG (E-7) on 1 November 1974.

4.  There is no evidence showing the applicant was appointed, advanced, or promoted to any rank (either temporary or permanent) in pay grade E-8.

5.  Records show that the highest grade the applicant held during his military service was pay grade E-7 and he was honorably discharged in the grade of E-7 on 15 July 1975.  Records also show the applicant was transferred to the USAR Control Group (Retired Reserve) in the grade of E-7 and he was placed on the Retired List in the grade of E-7 effective 15 April 1984.

6.  By regulation, the grade held on the date of separation will be entered in item 3 of the NGB Form 22 and on the related separation documents/orders.  Records confirm the applicant held the rank and pay grade of PSG/E-7 on the date of his separation from the ARNG.  Thus, there is no error with respect to the applicant's records at the time of his separation and the retired grade in which the applicant was placed on the Retired List is correct.  Therefore, the applicant is not entitled to correction of his records in this case.

7.  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.  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:

1.  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.



2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20090008471



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ABCMR Record of Proceedings (cont)                                         AR20090008471



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