IN THE CASE OF:
BOARD DATE: 27 April 2010
DOCKET NUMBER: AR20090018301
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 his rank/grade as private first class (PFC)/E-3 instead of private (PV2)/E-2. He also requests payment of 60 days of leave based on the correction.
2. The applicant states he was advanced to PFC/E-3 in April 1965 [sic] (February 1965) and he was discharged from active duty in March 1965. He also sold 60 days of accrued leave but was paid at the rate of E-2 instead of E-3.
3. The applicant provides a copy of his DD Form 214, dated 1 March 1965; a copy of his Honorable Discharge Certificate, dated 29 February 1968; and a copy of U.S. Army Reserve (USAR) Letter Orders, dated 23 February 1968, in support of his request.
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 applicant's records show he enlisted in the Regular Army on 9 March 1962 and held military occupational specialty 640.00 (Light Vehicle Driver). He was promoted to PV2/E-2 on 9 July 1962 and PFC/E-3 on 10 November 1962.
3. His records also show he was assigned to the 544th Transportation Company, Germany, on 25 June 1963.
4. On 29 November 1963, he was convicted by a special court-martial and he was sentenced to a reduction to private/E-1 among other punishment.
5. He was promoted back to PV2/E-2 on 31 March 1964 and again to PFC/E-3 on 1 April 1964.
6. On 15 September 1964, Headquarters, 544th Transportation Company, published Unit Orders Number 195 reducing him to PV2/E-2 as a result of accepting nonjudicial punishment.
7. On 19 November 1964, he was reassigned to the 547th Transportation Company.
8. On 17 February 1965, Headquarters, 547th Transportation Company, published Unit Orders Number 14 appointing him to the permanent grade of PFC/E-3.
9. He was honorably released from active duty on 1 March 1965 and he was transferred to the USAR Control Group for completion of his Reserve obligation. The DD Form 214 he was issued shows he completed 2 years, 11 months, and 23 days of creditable active service. This form also shows:
a. Items 3a (Grade, Rate or Rank) and 3b (Date of Rank) the entries "PVT E2 (P)" and "15 SEP 64."
b. Item 26 (Decorations, Medals, Commendations, Citations and Campaign Ribbons Awarded or Authorized) the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).
c. Item 32 (Remarks) the entry "Lump sum payment made for 60 days accrued leave."
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his DD Form 214 should be corrected to show his rank/grade as PFC/E-3 and that he should have been paid for his accrued leave based on this rank/grade.
2. The evidence of record shows the applicant was appointed to the permanent rank/grade of PFC/E-3 on 17 February 1965. It appears the appointment orders were not submitted on time which led to his DD Form 214 being submitted with an incorrect rank/grade. Therefore, he is entitled to correction of his DD Form 214 to show his rank/grade as PFC/E-3 with a date of rank of 17 February 1965. He should also be entitled to payment of accrued leave at this rank/grade if he has not already been paid at the proper rate.
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:
a. deleting the entry "PVT E2 (P)" and "15 SEP 64" from items 3a and 3b of his DD Form 214 and adding the entries "PFC E-3 (P)" and "17 FEB 65"; and
b. undergoing an audit by the Defense Finance and Accounting Service (DFAS) to determine if he was paid a lump sum payment for 60 days of accrued leave at the correct rank/grade and, if not, paying him accordingly.
_______ _ 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) AR20090018301
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ABCMR Record of Proceedings (cont) AR20090018301
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