IN THE CASE OF:	  

		BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120008259 


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 identification (ID) card to show the permanent rank of sergeant (SGT) and his DD Form 214 (Report of Separation Armed Forces of the United States) to show in:

* Item 3 (Grade-Rate-Rank) the permanent rank of SGT
* Item 28 (Most Significant Duty Assignment) the entry Company G,
7th Cavalry Regiment

2.  The applicant states:

* he served with the 7th Calvary Regiment throughout his service
* he received SGT pay from 19 January 1951 through 1 November 1952
* SGT is listed on his Honorable Discharge Certificate and on photographs
* he was promoted to corporal in August 1950 and promoted to staff sergeant (SSG) on 19 January 1951
* he served in the Korean War as a SSG and he was responsible for the men in his squad
* in May 1951, he moved back to the United States and he was stationed at Fort Knox, KY where he trained new recruits
* his ID card incorrectly reflects his status as E-4 instead of E-5
* he is proud of his service during the Korean War and afterwards
* he is equally proud of the status he achieved and this reflects his hard work and commitment
* he would like his records corrected so that when he is laid to rest in the Dayton National Cemetery his headstone will accurately display his rank and unit

3.  The applicant provides:

* ID Card
* Honorable Discharge Certificate, dated 1 November 1952
* 2 unit photographs, including his picture
* Extracts from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF)

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.  The applicant enlisted in the Regular Army on 2 November 1949 for a period of 3 years.  He completed training and he held military occupational specialty 1745 (Light Weapons Infantry Leader).

3.  Special Order Number 9, issued by Headquarters, 7th Cavalry Regiment, dated 19 January 1951, promoted the applicant to the temporary grade of SGT.  These orders show he was assigned to Company G at the time of his promotion.

4.  Section 12 (Appointments, Promotions, or Reductions) of the applicant's
WG AGO Form 24A (Service Record), shows the applicant was promoted to the temporary grade of SGT on 19 January 1952.  The form also shows his permanent grade and date of rank was verified on 3 October 1952.

5.  An affidavit signed by the applicant, dated 3 October 1952, shows he acknowledged that date of rank in the permanent grade of corporal was
28 August 1950.

6.  On 1 November 1952, the applicant was honorably discharged for the convenience of the Government in the rank of SGT (Temp).  The DD Form 214 he was issued at the time shows he completed 3 years of net active military service that included 1 year, 1 month, and 6 days of foreign service.

7.  There is no evidence of record and the applicant did not provide any substantial evidence, such as orders, that show he was promoted to the permanent grade of SGT prior to his discharge.

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 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:

1.  The applicant's request for correction of his DD Form 214 to show the permanent rank/grade of SGT/E-5 and his unit of assignment as Company G, 7th Cavalry Regiment was carefully considered.

2.  Special Orders Number 9, dated 19 January 1951, promoted him while he was assigned to Company G, 7th Cavalry Regiment.  There is no evidence of record that shows he was ever assigned to the 4th Cavalry Regiment.  Therefore, his DD Form 214 should be corrected to show his most significant duty assignment was with Company G, 7th Cavalry Regiment.

3.  Special Orders Number 9, dated 19 January 1951, promoted the applicant to the temporary rank/grade of SGT/E-5.  There is no evidence of record and he did not provide any evidence in the form of orders promoting him to the permanent rank/grade of SGT/E-5 at any time during his active duty service.  By regulation, the active duty rank held at the time of separation will be entered on the  separation document.  In the absence of evidence to the contrary, it is presumed that the grade shown on his DD Form 214 is the correct grade he held at the time of his separation.  Therefore, there is an insufficient evidentiary basis for granting this portion of the requested relief.


4.  The applicant requested correction of his ID card to show his grade as E-5.  Although there is no evidence that he was promoted to the permanent rank/grade of SGT/E-5, the issuance of ID cards is not within the purview of the ABCMR.  Therefore, he is advised to contact the nearest military ID card facility for information concerning his ID card issue.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 28 of his DD Form 214 the current entry and replacing it with the entry "Company G, 7th Cavalry Regiment."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his DD Form 214 to show his permanent rank as SGT.



      ____________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)                                         AR20120008259



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ABCMR Record of Proceedings (cont)                                         AR20120008259



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