IN THE CASE OF:
BOARD DATE: 1 December 2009
DOCKET NUMBER: AR20090011602
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 Transfer or Discharge) to show that he was released from active duty (REFRAD) in the rank of specialist four (E-4).
2. The applicant states that he was reduced in rank because he married his wife at the United States Consulate. He states that while he was in his second tour of duty in Korea, he applied to get married and each time the paperwork reached his unit, he was transferred. He states that this occurred three times and he was told that his commanding general was against Americans marrying Korean women. He states that he has been married now for 46 years.
3. The applicant provides no additional documentation 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. On 6 November 1961, the applicant enlisted in the Regular Army in New Orleans, Louisiana, for 3 years, in the pay grade of E-1. He successfully completed his training as a supply specialist. He was promoted through the ranks to the pay grade of E-4. He was transferred to complete a second tour of duty in Korea on 27 August 1963.
3. Nonjudicial punishment (NJP) was imposed against him on 7 September 1964, for violating a lawful order by marrying without prior written military authority on 3 September 1964, at the American Embassy in Seoul, Korea. His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay in the amount of $40.00.
4. The applicant returned to the Continental United States on 26 September 1964 and he was honorably REFRAD on 26 September 1964, under the provisions of Army Regulation 635-205, as an overseas returnee, and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve obligation. The DD Form 214 that he was furnished shows his rank and pay grade as private (PVT) E-2.
5. Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that 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 of specialist four (E-4).
2. His contentions have been noted. However, he was not REFRAD in the rank of specialist four.
3. The applicant was reduced to the pay grade of E-2 as a result of NJP which was imposed against him for violating a lawful order by marrying without prior written military authority. While it is commendable that he and his wife remained married for 46 years, it is not a sufficient justification for amending his DD Form 214.
4. There is no evidence in the available records nor has the applicant submitted any evidence to show that the NJP that was imposed against him and reduced him to the pay grade of E-2 was improper or unjust. His DD Form 214 appropriately reflects his rank and pay grade at the time of his REFRAD.
5. In order to justify correction of a military record the applicant must show 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.
6. 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:
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) AR20090011602
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ABCMR Record of Proceedings (cont) AR20090011602
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