IN THE CASE OF:
BOARD DATE: 13 April 2011
DOCKET NUMBER: AR20100024216
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 specialist four (SP4)/E-4.
2. He states an injustice occurred when a major and a noncommissioned officer charged him with disobeying a lawful order. He contends if he had reenlisted, the charge would have been forgotten.
3. He provides no additional 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. He enlisted in the Regular Army on 25 August 1964 for 3 years. After the completion of training, he served in military occupational specialty 13A (Field Artillery Basic).
3. Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served 10 months in Germany during the period 6 January through 29 November 1965 and 12 months in Vietnam during the period 1 January through 31 December 1966.
4. Item 33 (Appointments and Reductions) of his DA Form 20 shows he was appointed/reduced as follows:
Grade
Permanent (P) Temporary (T)
Date of Rank (DOR)
Authority:
Army Regulation (AR) or Orders
Private (PVT)/E-1
P
25 August 1964
AR 601-210
PVT/E-2
P
25 December 1964
AR 624-200
Private First Class/E-3
P
25 April 1965
Orders
SP4/E-4
T
8 April 1966
Orders
PVT/E-2
P
12 May 1967
Summary Court-Martial Orders
5. His military personnel record contains Headquarters, 1st Battalion (Airborne), 321st Artillery, Summary Court-Martial Order (SCMO) Number 4, issued on 12 May 1967. This order shows he was charged with one specification of violating Article 92 of the Uniform Code of Military Justice (UCMJ). He failed to obey a lawful order not to go beyond a 20-mile radius from Fort Campbell, KY, on 2 May 1967.
6. SCMO Number 4 also shows he was sentenced to be reduced to the grade of PVT/E-2 and to forfeit $50.00 per month for 1 month effective 12 May 1967.
7. His record does not contain any documentation and he has not provided any to show he was subsequently advanced to the rank/grade of SP4/E-4.
8. His DD Form 214 shows he was honorably released from active duty on 24 August 1967 and transferred to the U.S. Army Reserve Control Group (Annual Training) for completion of his Reserve service obligation. This form also contains the following entries:
* item 5a (Grade, Rate, or Rank) PVT (P)
* item 5b (Pay Grade) E-2
* item 6 (DOR) 12 May 1967
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows he was reduced to the rank/grade of PVT/E-2 on 12 May 1967 by SCMO Number 4.
2. There is no evidence and he has not provided sufficient evidence to show he was subsequently advanced to the rank/grade of SP4/E-4 after 12 May 1967. Therefore, in the absence of such evidence, he is not entitled to the requested relief.
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 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) AR20100024216
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100024216
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