IN THE CASE OF:	

		BOARD DATE:	  06 May 2010

		DOCKET NUMBER:  AR20090017321 


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 records to show the highest rank he held and his service in Korea.

2.  The applicant states he believes these two items were simply overlooked.

3.  The applicant provides no additional documentary evidence 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 enlisted and entered active duty in the Regular Army (RA) on 18 February 1976.  Upon completion of training, he was awarded military occupational specialty 63H (Automotive Repairman).  He reenlisted in the RA for a period of 3 years on 27 November 1979.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 5 (Oversea Service) that he served in in Germany from 18 September 1976 through 27 March 1979;  (This item does not show an entry for Korea.)

   b.  item 18 (Appointments and Reductions) shows the highest grade he was promoted to/held was sergeant (SGT) [E-5] with a date of rank (DOR) of 10 April 1980; and

   c.  item 35 (Record of Assignments) shows he was assigned to Company C, 122nd Maintenance Battalion (Germany) from 24 September 1976 through
26 March 1979.  (This item does not show he was assigned overseas in Korea.)

4.  Headquarters, 5th Infantry Division (Mechanized) and Fort Polk, Fort Polk, Louisiana, Orders 79-33, dated 22 April 1980, promoted the applicant to SGT
[E-5] with a DOR of 11 April 1980 effective 1 May 1980.

5.  Headquarters, 5th Infantry Division (Mechanized) and Fort Polk, Fort Polk, Louisiana, Orders 184-108, dated 22 September 1982, discharged the applicant from the RA effective 26 November 1982.  The orders show his rank at the time was "SGT."

6.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty on 18 February 1976 and he was honorably discharged on 26 November 1982 based on completion of required service:

   a.  Item 4a (Grade, Rate or Rank) shows the entry "SGT" and item 4b (Pay Grade) shows the entry "E5."

	b.  Item 12 (Record of Service) shows in:

(1) block f (Foreign Service) he completed 2 years, 6 months, and
10 days; and

       (2)  block h (Effective Date of Pay Grade) the entry "80  05  01" (i.e., 1 May 1980).

7.  The applicant's military personnel records do not contain any orders or other evidence that shows he was promoted to a rank or grade higher than SGT/E-5.

8.  The applicant's military records do not contain any orders or other evidence that shows he served overseas in Korea.

9.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214:  

   a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, enlistment/ reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the Official Military Personnel File.

   b.  Table 2-1 (DD Form 214 Preparation Instructions) of this regulation contains item-by-item instructions for completing the DD Form 214.  The instructions for: 

       (1)  items 4a and 4b state enter active duty grade of rank and pay grade at time of separation;

	    (2)  item 12, block f, enter the total amount of foreign service completed during the period covered in item 12c (Net Active Service This Period); and

       (3)  item 12, block h, enter the effective date of promotion to pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show the highest rank he held and that he served overseas in Korea.

2.  Orders promoted the applicant to SGT (E-5) with a DOR of 11 April 1980 effective 1 May 1980:

   a.  His DA Form 2-1, DD Form 214, and discharge orders all show the applicant's rank/grade at the time of his discharge was SGT (E-5).

   b.  There is no evidence, and the applicant provides insufficient evidence, that he held a rank or grade higher than SGT/E-5.

   c.  Therefore, there is no basis for correcting the applicant's records in this instance.

3.  The applicant's DA Form 2-1 shows he served overseas in Germany from
18 September 1976 through 27 March 1979.  A calculation of this period of service shows it equates to 2 years, 6 months, and 10 days.

4.  There is no evidence, and the applicant provides insufficient evidence, that he served overseas in Korea.

5.  Therefore, there is no basis for correcting the applicant's records to show he served in Korea.

6.  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.  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)                                         AR20090017321



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017321



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1