IN THE CASE OF:	  

		BOARD DATE:	    3 December 2009

		DOCKET NUMBER:  AR20090009238 


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, in effect, correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) and Honorable Discharge Certificate to show corporal (CPL).

2.  The applicant essentially states that his DD Form 214 incorrectly shows that his rank at the time of his release from active duty was specialist third class (SP3) instead of CPL, and that his Honorable Discharge Certificate shows that his rank at the time of his discharge was specialist four (SP4) instead of CPL.  He also states that he was awarded the rank of CPL in March 1955.

3.  The applicant provides a copy of two self-authored letters, dated 14 May 2009; his DD Form 214; his Honorable Discharge Certificate; his induction order; three pages of copied photographs, a one-page resume, his New York State driver license; a visitation report from a German class he taught in 1964; a guidance counselor's evaluation form from 1996; a document, dated
17 September 1953, which appointed him an assistant leader of a contingent of men enroute to a Joint Examining and Induction Station; a certificate of training, dated 30 January 1954, showing he completed basic military police training; a National Archives (NA) Form 13075 (Questionnaire about Military Service), dated 12 August 2009; and a copy of his 1953 baccalaureate diploma from New York University in support of this 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 majority of the applicant’s military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center (NPRC), St. Louis, MO, in 1973.  It is believed that the majority of the applicant's records were lost or destroyed in that fire.  However, there are sufficient remaining documents available to conduct a fair and impartial review of this case.

3.  The available military records show that the applicant was inducted into the Army of the United States on 17 September 1953.  He completed initial entry training and he was awarded military occupational specialty (MOS) 1677 (Military Policeman).  On 28 July 1955, he was honorably released from active duty at Fort Dix, NJ and he was transferred to the U.S. Army Reserve (USAR) to complete his remaining Reserve obligation.  He was honorably discharged from the USAR on 31 August 1961.

4.  Item 3 (Grade, Rate, or Rank and Date of Appointment) of the applicant's 
DD Form 214 shows that his rank/grade at the time of his release from active duty on 28 July 1955 was SP3/E-4, and that he was appointed to this rank on
1 July 1955. The applicant authenticated this document with his signature, attesting to the accuracy of the information contained on this document.  It was also authenticated by a commissioned officer's signature.  The fact that his military records contained orders, dated 25 July 1955, showing that his rank at the time was CPL was noted and will be discussed later in these Proceedings.

5.  Orders, dated 26 August 1955, which reassigned the applicant to the 1706th USAR Control Group (Emergency Reinforcement) show that his rank at the time was SP3.  The applicant's Honorable Discharge Certificate from the USAR shows that his rank at the time of his discharge on 31 August 1961 was SP4.

6.  The Institute of Heraldry website contains the history of U.S. Army enlisted ranks.  It shows that Army Regulation 615-15, dated 2 July 1954, announced a new grade structure effective 1 March 1955.  The new titles for pay grade E-4 were CPL and SP3.  War Department Circular No. 670-3, dated 12 October 1955, stated the effective date for the above change was 1 July 1955.  Certain circumstances dictated an individual receive an automatic conversion from CPL to SP3.

7.  Department of the Army (DA) Message 344303, dated June 1958 added enlisted grades E-8 and E-9 and restructured titles of certain existing ranks.  SP3 was restructured to SP4 at that time.

8.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank shown on his DD Form 214 and Honorable Discharge Certificate should be changed to CPL.

2.  The fact that the applicant's military records contained an order, dated 25 July 1955, showing that his rank at the time was CPL was noted.  However, it appears that the applicant's rank of CPL was converted to SP3 on 1 July 1955 as evidenced by his DD Form 214, which was authenticated not only by the applicant but also by a commissioned officer on 28 July 1955.  While the sincerity of the applicant's claim to have served as a CPL is not questioned, based upon the information contained on his DD Form 214, there is insufficient basis for correcting this document to show that his rank at the time of his release from active duty was CPL instead of SP3.

3.  Orders after the applicant's release from active duty confirm that his rank was SP3 while in the USAR.  The rank structure for SP3 was subsequently converted to SP4 prior to his honorable discharge from the USAR on 31 August 1961.  As a result, the applicant's Honorable Discharge Certificate accurately reflects that his rank at the time of his discharge was SP4.

4.  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 insufficient basis for granting relief to the applicant in this case.

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.  While the Board regrets that a more favorable response could not be accomplished, it wants to thank the applicant for the sacrifices made by him in service to the United States during his military service.  The applicant and all Americans should be justifiably proud of his honorable 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)                                         AR20090009238



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ABCMR Record of Proceedings (cont)                                         AR20090009238



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