IN THE CASE OF:
BOARD DATE: 31 March 2011
DOCKET NUMBER: AR20100020326
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 as private first class, pay grade E-3.
2. The applicant states he was a specialist, pay grade E-4 at the time of his court-martial. He contends that his reduction should have been to pay
grade E-3.
3. The applicant provides copies of pages 1 and 2 of his DA Form 20 (Enlisted Qualification Record.
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. On 13 February 1968, the applicant was inducted into the Army of the United States. He completed his initial training and was awarded military occupational specialty 36K (Wireman).
3. Special Orders Number 125, 4th Infantry Division, dated 5 May 1969, advanced the applicant to specialist, pay grade E-4.
4. Special Court-Martial Order Number 15, 1st Battalion, 69th Armor Regiment, dated 19 September 1969 shows:
a. the applicant was a private first class/E-3;
b. the applicant was found guilty as charged; and
c. the applicant's sentence included reduction to private, pay grade E-1.
5. On 3 October 1969, the applicant was released from active duty (REFRAD) and transferred to the U.S. Army Reserve Control Group (Annual Training).
6. The applicant's DD Form 214, effective 3 October 1969 shows:
a. his rank and pay grade as private, E-2; and
b. he was separated with temporary records and the applicant's affidavit.
7. Item 33 (Appointments and Reductions) of the applicant's DA Form 20 indicates that Special Court-Martial Order 15, discussed above, reduced him to private, pay grade E-2 effective 19 September 1969.
8. Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214. It provides that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.
a. The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.
b. Item 5a (Grade, Rate or Rank) and Item 5b (Pay Grade) are to contain entries showing the Soldier's rank and pay grade at the time of REFRAD.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214 should be corrected to show his rank as private first class, pay grade E-3 because he was a specialist, pay grade E-4 at the time of his court-martial, and not a private, pay grade E-3 as indicated in the court-martial order.
2. The available evidence appears to support the applicant's contention that he was a specialist, pay grade E-4 at the time of his court-martial. However, there is no evidence showing that the portion of his sentence reducing him to pay grade E-1 was improper or in error.
3. It appears that the applicant's rank and pay grade resulting from his court-martial were incorrectly entered in item 33 of his DA Form 20.
4. There is also an inconsistency between the court-martial record and the
DD Form 214 as it relates to the applicant's pay grade. This error was most likely the result of using temporary records at the time of his separation that were incorrect and/or incomplete.
5. In order to not make the applicant worst off, his DD Form 214 should not be changed to show his pay grade as E-1.
6. In view of the above, the applicant's request should be denied.
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) AR20100020326
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100020326
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