IN THE CASE OF:
BOARD DATE: 27 October 2009
DOCKET NUMBER: AR20090009280
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, that his rank and pay grade that is shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued on 23 October 1964 be corrected to show his rank/pay grade as specialist four (SP4)/E-4.
2. The applicant essentially states he received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for missing kitchen patrol, and that his punishment, in part, consisted of a reduction from SP4/E-4 to PFC/E-3. He also contends that his rank of SP4 was restored prior to his release from active duty on 23 October 1964, but it is not reflected on his DD Form 214.
3. The applicant provides his DD Form 214 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 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's military records show that he served in the Regular Army from 26 October 1961 to 23 October 1964 until he was honorably released from active duty and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).
3. Item 3a (Grade, Rate, or Rank) of the applicant's DD Form 214 shows that his rank and pay grade at the time of his release from active duty on 23 October 1964 was PFC/E-3. Item 32b (Date of Rank) of this same document shows that his date of rank to PFC/E-3 was 10 December 1963. There are no orders in his military records or any other evidence which shows he was promoted to SP4/E-4 after 10 December 1963 prior to his release from active duty on 23 October 1964.
4. On 2 May 1975, he enlisted in the USAR and served with various Reserve units in New York and Maryland until he was transferred to the USAR Control Group (Reinforcement) on 1 September 1981. He was honorably discharged on
1 June 1982.
5. Army Regulation 15-185 (Army Board for Correction of Military Records) 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 and pay grade shown on his DD Form 214 should be changed from PFC/E-3 to SP4/E-4.
2. The applicant's contention that his rank of SP4 was restored prior to his release from active duty on 23 October 1964 was considered. However, there is no evidence, in the applicant's military records, and the applicant failed to provide any evidence, to corroborate his contention. In view of the foregoing, there is an insufficient basis for correcting the rank and pay grade shown 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.
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