IN THE CASE OF:
BOARD DATE: 12 January 2010
DOCKET NUMBER: AR20090013479
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 military records to show his correct pay grade and to receive back pay due as a result of the correction.
2. The applicant states that at the time of his entry into active duty his rank was private first class, pay grade E-3. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows his rank as private, pay grade E-2 at the time of his entry active duty.
3. The applicant provides copies of his National Guard Bureau (NGB) Form 55 (Honorable Discharge Certificate), NGB Form 22 (Report of Separation and Record of Service), DD Form 214, separation orders, and Honorable Discharge Certificate from the Army of the United States 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 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 applicant's military records are not available for review. A fire destroyed approximately 18 million service member's records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, there are sufficient documents available to conduct a fair and impartial review of this specific request.
3. The applicant's NGB Form 22 shows the following:
a. On 6 December 1954, he enlisted in the Missouri Army National Guard for a period of 3 years.
b. He attained the rank of private first class as an infantry Soldier.
c. On 25 February 1957, he was discharged from the Missouri Army National Guard and concurrently enlisted in the U.S. Army Reserve.
4. The applicant's DD Form 214, effective 17 April 1959, shows the following:
a. On 1 May 1957, he was called to active duty as a Reservist in the rank of private, pay grade E-2.
b. On 17 April 1959, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training). He had attained the rank of specialist four, pay grade E-4, on 4 February 1959.
5. On 29 April 1961, the applicant was honorably discharged from the Army of the United States.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, that he was called to active duty as a Reservist in the rank of private first class, pay grade E-3, instead of as a private, pay grade E-2. This resulted in his loss of pay and allowances.
2. The available records provided by the applicant show that he attained the rank of private first class, pay grade E-3, during his service in the Missouri Army National Guard. He was subsequently discharged on 25 February 1957 with this same rank.
3. The available evidence further shows that the applicant enlisted in the U.S. Army Reserve on 25 February 1957. However, the available evidence does not show that he retained his rank of private first class, pay grade E-3.
4. There is no available evidence for the period from 26 February 1957 to 30 April 1957 showing the applicant's rank and pay grade as a Reservist prior to being called to active duty.
5. Accordingly, the applicant's DD Form 214 that shows he was ordered to active duty as a Reservist on 1 May 1957 in the rank of private, pay grade E-2, is presumed to be correct. His DD Form 214 also shows that he was advanced to specialist four, pay grade E-4, on 4 February 1959.
6. In view of the above, the applicant's request should be denied.
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) AR20090013479
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ABCMR Record of Proceedings (cont) AR20090013479
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