IN THE CASE OF:
BOARD DATE: 9 September 2010
DOCKET NUMBER: AR20100010553
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 that his DD Form 214 (Report of Separation from the Armed Forces of the United States) be corrected to show that he was honorably discharged in the rank of sergeant (SGT).
2. The applicant states that the company roster shows that he was serving in the rank of corporal (CPL) in July 1950; however, his DD Form 214 shows that his date of appointment was 5 July 1951 which indicates that he should have been promoted to the rank of SGT on 5 July 1951 because he was already serving in the rank of CPL. Accordingly, he desires his grave marker to reflect the rank of SGT.
3. The applicant provides a copy of his DD Form 214 and copies of his company roster showing his rank of CPL as early as July 1950.
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 for review. A fire destroyed approximately 18 million service members records at the National Personnel Records Center in 1973. It is believed that the applicants records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.
3. The applicant enlisted in the Regular Army in Jamestown, New York on 8 December 1948. He completed his training as a heavy equipment mechanic in June 1949 and his records show that he served 2 years, 1 month and 18 days of foreign and/or sea service.
4. He was promoted to the rank of permanent (P) CPL on 5 July 1951; however, the available records do not indicate the date he was promoted to the rank of temporary (T) CPL.
5. On 7 December 1951 he was honorably discharged at Indiantown Gap Military Reservation, Indiantown, Pennsylvania in the rank of (P) CPL. He was awarded the Korean Service Medal with five bronze service stars and the Republic of Korea Presidential Unit Citation. He had served 3 years of total active service.
6. There is no evidence in the available records to show that he was recommended for or promoted to the rank and pay grade of SGT/E-5 prior to his discharge.
7. Special Regulation (SR) 615-25-50 provided the provisions for effecting temporary promotions during periods of rapid expansion and was effective upon a declaration of war or on mobilization under appropriate orders. It provided, in pertinent part, that the normal method of promotion in the mobilization Army will be temporary promotion by appropriate promotion authorities applied against specialty and grade vacancies in their command. Time in grade provisions did not apply to table of organization and equipment (TO&E) units in active combat theaters unless prescribed by theater commanders. That regulation also provided, in pertinent part, that only Regular Army soldiers could hold permanent promotions that were retained upon reversion of the Army to a peacetime status when temporary appointments are terminated.
DISCUSSION AND CONCLUSIONS:
1. Although it cannot be determined with any degree of certainty, it appears that the applicant was promoted to the permanent rank of CPL on 5 July 1951.
2. Given the absence of evidence to show that he was promoted to the rank and pay grade of SGT/E-5 on 5 July 1951, it must be presumed that he served in the temporary grade of CPL until he was promoted to the permanent rank of CPL on 5 July 1951.
3. Accordingly, his DD Form 214 correctly reflects his rank at the time of discharge and he has provided no evidence to show that he was in fact promoted to the rank of sergeant. Accordingly, there appears to be no basis to grant his request.
4. 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.
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) AR20100010553
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ABCMR Record of Proceedings (cont) AR20100010553
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