IN THE CASE OF:	  

		BOARD DATE:	  2 September 2010

		DOCKET NUMBER:  AR20100009942 


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 as follows:

* reinstatement of his rank
* payment of 87 days of accumulated leave that was lost
* replacements for loss of hold baggage, to include stereo equipment and 260 albums

2.  The applicant states he appeared before a board in the U.S. Army Reserve (USAR) and his rank was reinstated.  He also states that if possible he would like to pick up replacement items at Two Rock, CA, or Presidio of San Francisco, CA. 
The items include a knitted sweater; expensive Corcoran boots made in Germany; tanker boots; and a military-issued tanker flight jacket with the 64th Armor, 3rd Army, emblem and specialist five rank.

3.  The applicant did not provide any additional documentary evidence.

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.  With respect to the issue of leave pay, Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.  A change to this statute is not within the purview of this Board.  Therefore, this issue will not be discussed further in the Record of Proceedings.

3.  With respect to the issue of what appears to be lost equipment; this issue is also not within the purview of this Board.  The applicant is advised to contact the nearest Joint Personal Property Shipping Office (formerly known as the transportation office) to inquire about recovering misplaced/lost personal items or filing a claim for lost personal items.  Therefore, this issue will not be discussed further in the Record of Proceedings.

4.  The applicant's records show he was inducted into the Army of the United States in the rank/grade of private/E-1 on 21 August 1969 and held military occupational specialty (MOS) 11D (Armored Reconnaissance Specialist).  He was promoted to private (PV2)/E-2 on 21 December 1969.

5.  Subsequent to completion of MOS training, he was reassigned to Germany on or about 2 January 1970.  He was assigned to Company B, 1st Battalion, 64th Armor Regiment.

6.  On 20 February 1970, Headquarters, 3d Infantry Division, published Special Orders Number 96 promoting him to private first class (PFC)/E-3.

7.  On 3 August 1970, Headquarters, 3d Infantry Division, published Special Orders Number 212 reducing him to PV2/E-2.

8.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was promoted to PFC/E-3 on 20 February 1970 and was reduced to PV2/E-2 on 3 August 1970.  Item 33 does not show any promotions or appointments from the date of reduction to PV2 to the date of his release from active duty.

9.  On 1 June 1971, Headquarters, 3d Infantry Division, published Special Orders Number 141 reassigning him on a permanent change of station.  The orders listed his rank PV2.

10.  On 21 July 1971, Headquarters, 3d Infantry Division, published Special Orders Number 188 amending his reporting date.  The orders listed his rank as PV2.

11.  On 22 July 1971, he departed Germany en route to Fort Ord, CA, and on 28 July 1971, Headquarters, U.S. Army Training Center, Infantry, Fort Ord, published Special Orders Number 209 releasing him from active duty.  The orders listed his rank as PV2.

12.  He was honorably released from active duty on 29 July 1971 and transferred to the USAR Control Group to complete his remaining service obligation.  Item 5a (Grade, Rate, or Rank) and item 5b (Pay Grade) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) contain the entries "PV2" and "E-2."  Item 6 (Date of Rank) contains the entry "3 August 1970."

13.  His records and/or activities in the USAR subsequent to his released from active duty are not available for review with this case.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  The regulation specified that the purpose of the separation document was to provide the individual with documentary evidence of his or her military service.  The DD Form 214 was a summary of a Soldier's most recent period of continuous active duty, to include attendance at basic and advanced training, and would be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Chapter 2 contained guidance on the preparation of the DD Form 214.  Item 5a showed the grade in which the enlisted Soldier was serving at time of separation, indicating whether permanent or temporary; item 5b showed the enlisted Soldier's pay grade; item 5c showed the date of rank or the grade shown in item 5a; and item 23 showed the primary MOS code number and title.

15.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated that the promotion of enlisted personnel to grades E-5 through E-9, appointments, grade reductions, and grade restorations were announced in routine orders.  Unit orders were issued for promotions to grades E-3 and E-4.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that at the time of his separation on 29 July 1971, the applicant held the rank/grade of PV2/E-2.  His record is void of any orders promoting him to a higher rank/grade from the date of his reduction on 3 August 1970 to the date of his discharge on 29 July 1971.  Item 33 of his DA Form 20 does not show an entry for a higher promotion and/or appointment.

2.  There is neither evidence in the available records nor did he provide any evidence to substantiate his promotion or appointment to a higher rank/grade.  In the absence of promotion orders and/or the authority for this promotion, there is insufficient evidence to grant him the requested relief.

3.  With respect to his USAR service, the evidence of record shows he was honorably released from active duty on 29 July 1971 and he was transferred to the USAR Control Group for completion of his remaining Reserve obligation.  The facts and circumstances surrounding his service in the USAR are not available for review in this case.

4.  Nevertheless, he was not issued a DD Form 214 for his USAR service because the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty service.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  A DD Form 214 is not issued for inactive USAR service.  Even if his rank was reinstated while in the USAR, this would not have affected his previously-issued DD Form 214.  Therefore, there is no basis for granting his 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)                                         AR20100009942



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ABCMR Record of Proceedings (cont)                                         AR20100009942



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