BOARD DATE: 21 June 2011
DOCKET NUMBER: AR20100026625
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 item 3 (Grade-Rate or Rank and Date of Appointment) of his DD Form 214 (Report of Separation from the Armed Forces of the United States) be corrected to show he was a second lieutenant (2LT) at the time of his discharge.
2. The applicant states he was discriminated against because of his sex. He contends that female nurses received commissions and male nurses did not. He was a male nurse when he entered the service and should have received at least a 2LT commission just like the female nurses.
3. The applicant provides his DD Form 214, effective 13 September 1954; a Registered Professional Nurse license, dated 2 November 1952; and three witness statements (one with attachments).
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 applicant's 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 his 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 record shows he was inducted into the Army of the United States (AUS) on 10 December 1952. On 13 September 1954 was released from active military service and transferred to the U.S. Army Reserve (USAR), Army Medical Service (AMEDS). His DD Form 214 shows:
* Item 3, SGT (T) 31 August 1954
* Item 4 (Component and Branch or Class) - AUS AMEDS
* Item 18 (Grade-Rate or Rank at Time of Entry into Active Service) - Private
* Item 46 (Non-Service Education) Degree(s) - None
* Item 47 (Main Civilian Occupation) - Nurse
4. The applicant provides three witness statements which confirm he served as a registered nurse. One witness, Mr. G____, states that he was commissioned as a first lieutenant on 3 May 1957 when they [the Army] finally ended the discrimination practice against male nurses. The other witness statements make no reference to sexual discrimination directed specifically toward the applicant or male nurses in general. In addition, the applicant provides a copy of his Registered Professional Nurse's license issued by the University of the State of New York, Education Department, dated 2 November 1952.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests his DD Form 214 be corrected to show he was a 2LT at the time of his discharge.
2. The applicant contends female nurses were commissioned upon entry into the Army but male nurses were discriminated against and did not have the same opportunity for commissioning. Witness statements provided by the applicant show he served as a male nurse but do not provide clear and convincing evidence the applicant was sexually discriminated against because he was a male nurse.
3. Further, the record does not contain the complete facts and circumstances of the applicant's enlistment nor can it be determined if he was eligible for a direct commission into the Army Nurse Corps. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. In the absence of evidence to the contrary, it must be presumed the applicant was afforded all his rights at the time and that he was properly enlisted, rather than commissioned.
4. In view of the above, his 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) AR20100026625
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ABCMR Record of Proceedings (cont) AR20100026625
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