IN THE CASE OF:
BOARD DATE: 15 October 2009
DOCKET NUMBER: AR20090009665
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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show that his rank and pay grade at the time of his release from active duty (REFRAD) was sergeant (E-5).
2. The applicant states that a clerical error was made at the time his
DD Form 214 was prepared.
3. The applicant provides a copy of Special Orders Number 21, dated 21 January 1970, promoting him to the rank of sergeant.
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 applicants military records are not available to the Board. This case is being considered using the applicants DD Form 214 and the Special Orders promoting him to the rank of sergeant.
3. On 11 July 1968, the applicant was inducted into the Army in Syracuse, New York, and he successfully completed his training as a light weapons infantryman.
4. On 21 January 1970, Special Orders Number 21 were published promoting the applicant to the rank of sergeant with an effective date of 11 January 1970.
5. After completing 1 year, 7 months, and 5 days of total active service, the applicant was REFRAD on 15 February 1970, under the provisions of Army Regulation 635-200, chapter 5, as an overseas returnee. He was transferred to the United States Army Reserve Control Group (Annual Training) to complete his Reserve obligation.
6. The DD Form 214 that the applicant was furnished at the time of his REFRAD shows this rank as specialist four (SP4) and his pay grade as E-4.
7. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. The DD Form 214 will be prepared to reflect an individual's service as it exists on the date of REFRAD or discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214 should be corrected to show that he was REFRAD in the rank and pay grade of sergeant (E-5).
2. His contentions have been noted and it appears that an administrative error was made during the preparation of the applicants DD Form 214 which resulted in the incorrect rank and pay grade being reflected therein.
3. The available evidence of record shows that on 21 January 1970 Special Orders Number 21 were published promoting the applicant to the rank sergeant with an effective date of 11 January 1970.
4. There is no evidence available that shows the applicant was reduced in rank between the time the order was published and the time of his REFRAD.
5. Therefore, it would now be in the interest of justice to correct the applicant's records as recommended below.
BOARD VOTE:
____X__ ___X____ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show that he was REFRAD in the rank and pay grade of sergeant (E-5) with a date of rank of 11 January 1970.
_______ _ 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) AR20090009665
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