IN THE CASE OF:
BOARD DATE: 3 May 2011
DOCKET NUMBER: AR20100026174
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, in effect, correction of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show his grade as a sergeant (SGT)/E-5 instead of private first class (PFC)/E-3.
2. The applicant states he read that if a member does not have the rank of SGT, after 5 years of service, he could request a discharge. He was put in for it with his first sergeant (1SG) but the 1SG laughed at him and said "no way." He and the 1SG had a fight earlier when the 1SG had him assigned to tank duty although his military occupational specialty (MOS) was that of a clerk typist. The 1SG made his life miserable for 18 months so he, the applicant, asked him for a discharge. Although he had served for 5 years, he was not promoted to SGT. His service had always been honorable until he had that fight. He was a member of the color guard and he had been selected as the Soldier of year at Fort Dix, NJ. He was one of the sharpest Soldiers within the 82nd Airborne Division and he had also been a driver for a general officer at Fort Bragg, NC.
3. The applicant provides a photograph.
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 to the Board 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 for the Board to conduct a fair and impartial review of this case.
3. The applicants DD Form 214 shows he enlisted in the Regular Army in the rank of private/E-1 for a period of 2 years on 10 November 1949. This form also shows at the time of his separation, his most significant duty assignment was Headquarters Battery, 82nd Airborne Division Artillery, Fort Bragg, NC.
4. He was honorably separated at Fort Bragg, NC, on 23 August 1952 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining service obligation.
5. Item 3 (Grade, Rate, Rank, and Date of Appointment) of his DD Form 214 shows the entry, "PFC (T) (Temporary) 5 July 1952." Additionally, item 18 (Remarks) shows the highest permanent rank/grade he held as private/E-2 (P) (Permanent), effective 12 December 1951.
6. There is no indication in his reconstructed records that shows he was promoted or appointed to the rank/grade of SGT/E-5.
7. He provides a photograph of a general officer presenting a check to another individual.
8. War Department Technical Manual 12-236 (Preparation of Separation Forms) and Army Regulation 635-5 (Separation Documents) prescribed the policies and procedures for the preparation of separation forms. These regulations state, in pertinent part, that the purpose of the separation document is to provide the veteran with a separation certificate and a military or enlisted record and report of separation. The DD Form 214 is prepared for all enlisted personnel separated from the service due to discharge, release from active duty or transfer to a Reserve Component, or retired. Item 3 of the DD Form 214 shows the grade held at the time of separation.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows the applicant served on active duty from 10 November 1949 through 23 August 1952. The highest grade he attained during his military service was PFC/E-3 (T). There is no evidence in his records and he did not provide any that shows he was recommended for or promoted to SGT/E-5 during his military service. Therefore, there is insufficient evidence to grant him 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 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) AR20100026174
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ABCMR Record of Proceedings (cont) AR20100026174
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