IN THE CASE OF:
BOARD DATE: 15 October 2009
DOCKET NUMBER: AR20090009114
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 items 5a (Grade, Rate or Rank) and 5b (Pay Grade) on his DD Form 214 (Report of Transfer or Discharge) to show specialist five (SP5)/E-5 instead of specialist four (SP4)/E-4.
2. The applicant states that he went before the promotion board prior to his discharge and he was promoted to SP5.
3. The applicant provides no documentary evidence 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 enlisted in the Regular Army (RA) on 25 September 1969 for a period of 2 years. He completed training and he was awarded military occupational specialty (MOS) 71H (personnel specialist).
3. Item 33 (Appointments and Reductions) on the applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to the rank of SP4 on
8 August 1970.
4. On 29 April 1971, the applicant was released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.
5. Item 5a on the applicant's DD Form 214 shows the entry "SP4." Item 5b on his DD Form 214 shows the entry "E4." Item 6 (Date of Rank) on his DD Form 214 shows the entry "8 AUG 71" (it appears this entry should show 1970 and not 1971).
6. Evidence of record show the applicant's rank at the time of his discharge was SP4.
7. There are no orders which show the applicant was promoted to SP5 in the available records. However, the applicant's service records contain a DA Form 137 (Installation Clearance Record), dated 17 April 1971, which shows his rank as SP5.
8. Discharge orders, dated 20 August 1975, show the applicant was honorably discharged from the USAR on 1 September 1975 in the rank of SP4.
DISCUSSION AND CONCLUSIONS:
Although the DA Form 137 shows the applicant's rank as SP5/E-5, there are no promotion orders in the applicant's records and he did not provide any evidence showing he was promoted to SP5 prior to his discharge. The applicant's 1971 orders releasing him from active duty and his 1975 discharge orders from the USAR show his rank as SP4. In the absence of promotion orders to SP5, there is insufficient evidence on which to amend items 5a and 5b on his DD Form 214.
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) AR20090009114
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