IN THE CASE OF:
BOARD DATE: 1 April 2010
DOCKET NUMBER: AR20090015898
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 retired pay grade.
2. The applicant states, in effect, that he has been receiving retired pay in pay grade E-5 and not pay grade E-6. He also states that he went to the Department of Veterans Affairs and they could not help him.
3. In support of his application, the applicant provides two DD Forms 214 (Report of Separation from the Armed Forces of the United States), dated
13 May 1952, and two original copies of his 1962 retirement orders.
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 for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the applicant's records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record and submitted by the applicant for the Board to conduct a fair and impartial review of this case.
3. The available evidence shows the applicant was promoted to sergeant first class (SFC) on 23 December 1948. He reenlisted in the Regular Army on 7 May 1949 for 3 years. He was honorably discharged from active duty on 13 May 1952, due to expiration term of service. He was issued a DD Form 214 that shows in Item 3, his rank as SFC-P (Permanent) and the date 23 December 1948, indicating the date he was promoted to SFC. He reenlisted on 14 May 1952 for 6 years.
4. The applicant submitted Special Order Number 208, dated 28 August 1962, showing he was released from active duty on 1 October 1962, upon completion of 20 years for retirement. His orders show his rank as SFC, pay grade E-6.
5. On 18 March 2010, a staff member of the Retired Pay Branch verified that the applicant retired on 1 October 1962 upon completion of 20 years of service and that he receives retired pay in pay grade E-6.
6. The Enlisted Grade Structure of the Army worksheet shows that during the applicants period of service the rank of SFC was pay grade E-6.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he has been receiving retired pay in pay grade E-5 was considered and found to lack merit. The evidence shows he served in pay grade E-6 from 7 May 1949 until he was separated due to retirement on 1 October 1962. He was issued a DD Form 214, dated 13 May 1952, and retirement orders, dated 28 August 1962, that properly show his pay grade as E-6. The retired pay branch verified the applicant is receiving retired pay in his appropriate pay grade of E-6. There is no evidence in the available record and none was provided by the applicant to support the requested relief.
2. 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.
3. 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) AR20090015898
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ABCMR Record of Proceedings (cont) AR20090015898
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