IN THE CASE OF:
BOARD DATE: 30 June 2011
DOCKET NUMBER: AR20100029248
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 (Report of Separation from Active Duty) to show he held the rank/grade of sergeant (SGT)/pay grade
E-5 instead of specialist four (SP4)/pay grade E-4 at the time of release from active duty.
2. The applicant states, in effect, he appeared before a board to be considered for promotion to SGT/E-5 and it was granted; however, his DD Form 214 shows he was discharged in the rank/grade of SP4/E-4. His contends his rank and medals were not sent to him. He discovered this error when re-applying for benefits.
3. He provides his DD Form 214.
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 record shows he was inducted into the Army of the United States and entered active duty on 19 March 1969 in the rank/pay grade of private (PVT)/E-1. Upon completion of advanced individual training he was awarded military occupational specialty 94D (Baker).
3. Unit Orders Number 15, dated 3 September 1969, show he was appointed to the permanent rank/pay grade of private first class (PFC)/E-3, effective 3 September 1969.
4. Unit Orders Number 3, dated 21 January 1970, show he was appointed to the temporary rank/pay grade of SP4/E-4, effective 21 January 1970.
5. Item 33 (Appointments and Reductions) of the applicant's DA Form 20 (Enlisted Qualification Record) covering his active duty service shows he was promoted to:
* private (PV2)/E-2 on 10 June 1969
* PFC/E-3 on 3 September 1969
* SP4/E-4 on 21 January 1970
6. Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, Special Orders Number 70, dated 11 March 1971, show the applicant was released from active duty in the rank of SP4/E-4 on 11 March 1971 and transferred to the U.S. Army Reserve. These orders also show he had 2 years of service in his current rank/pay grade of SP4/E-4.
7. A DA Form 2376 (Notification to State Adjutants General Release From Active Duty of Obligated Reservist), dated 11 March 1971, was sent to The Adjutant General of New Mexico to inform him the applicant was being released from active duty and had listed an address in New Mexico as his address upon release. This form shows he held the rank/pay grade of SP4/E-4 at the time.
8. The applicant's DD Form 214, dated 11 March 1971, shows in:
* Item 5a (Grade, Rate or Rank) SP4
* Item 5b (Pay Grade) shows E-4
* Item 6 (Date of Rank) 21 January 1970
9. His record is void of evidence and he has not provided any evidence showing he appeared before a board to be considered for promotion to SGT/E-5 and was subsequently selected for promotion.
10. His record is void of orders and he has not provided any orders promoting him to SGT/E-5 during his period of active duty service.
11. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. In pertinent part, it stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. This regulation, in pertinent part, also stated the active duty rank and pay grade at the time of separation will be entered in Items 5a and 5b of the DD Form 214, respectively.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his DD Form 214 should be corrected to show he held the rank of SGT/E-5 at the time of release from active duty was carefully considered and determined to lack merit.
2. His record contains no evidence and he has failed to provide evidence showing he was promoted to the rank of SGT/E-5 during the period of active duty service covered by his DD Form 214.
3. In the absence of evidence to the contrary, the entries in items 5a and 5b of the applicant's DD Form 214 are presumed to be correct. He has the burden of proving that an error or injustice occurred by a preponderance of the evidence.
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) AR20100029248
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ABCMR Record of Proceedings (cont) AR20100029248
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