IN THE CASE OF:
BOARD DATE: 20 November 2012
DOCKET NUMBER: AR20120009121
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 the rank listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
2. The applicant states the rank listed on his DD Form 214 is incorrect because he travelled with temporary finance records.
3. The applicant provides a Standard Form (SF) 89 (Report of Medical History), SF 88 (Record of Medical Examination), and DA Form 3349 (Physical Profile), all dated 16 December 1971, in support of his request.
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 record shows he enlisted in the Regular Army, on 5 March 1968, and he was trained in and awarded military occupational specialty (MOS) 64A (Motor Transport Operator).
3. The applicants DA Form 20 (Enlisted Qualification Record) shows in item 33 (Appointments and Reductions), on 13 February 1969, he attained the rank/pay grade of specialist four (SP4)/E-4, and that was the highest rank he attained while serving on active duty. It also shows he was reduced to private (PVT)/E-1, for cause, on 4 November 1970, and he was advanced back to the rank of PVT/E-2, on an unknown date, and to private first class (PFC)/E-3 on 15 May 1971. There is no indication in item 33 of the DA Form 20 that he was ever advanced back to the rank of SP4/E-4.
4. The applicants Military Personnel Records Jacket (MPRJ) contains orders confirming, on 4 November 1970, a special court-martial (SPCM) found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from 23 May 1969 to
15 September 1970, and that his sentence included a reduction in rank to
PVT/E-1.
5. The MPRJ contains a Standard Form (SF) 88 and SF 89, dated 16 December 1972, which document the applicants final medical examination processing. These documents list his pay grade as E-4. All other documents prepared during the separation process, including separation orders, dated 5 January 1972, and a statement of medical condition, dated 7 January 1972, list his rank/pay grade as PFC/E-3.
6. On 7 January 1972, the applicant was honorably released from active duty after completing 2 years, 6 months, and 11 days of creditable active military service and accruing 472 days of time lost due to being AWOL. The DD Form 214 he was issued at the time lists his rank and pay grade as PFC/E-3 in items 5a (Grade, Rate or Rank) and 5b (Pay Grade). Item 33 (Remarks) contains an entry indicating the applicant was separated on temporary finance records and the Soldiers Affidavit.
7. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. The version of the regulation in effect at the time of the applicants discharge stipulated that the DA Form 20 was the primary records source for entries on the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The applicants request to correct the rank/pay grade listed on his DD Form 214 has been carefully considered. However, there is insufficient evidence to support his claim. Notwithstanding the medical documents provided by the applicant and those in the record, the applicants DA Form 20 confirms that although he held the rank/pay grade of SP4/E-4 at one time, he was reduced from that rank, for cause, and he was never advanced back to the rank of SP4/
E-4 prior to his release from active duty.
2. The record also confirms he held the rank/pay grade of PFC/E-3 on the date of separation, as evidenced not only by the DA Form 20 entry but also by his separation orders and final medical condition statement, which were both dated after the SF 88, SF 89, and the DA Form 3349 provided by the applicant. Absent orders or a DA Form 20 entry indicating the applicant was advanced back to the rank of SP4/E-4 prior to release from active duty, there is an insufficient evidentiary basis to support granting 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) AR20120009121
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ABCMR Record of Proceedings (cont) AR20120009121
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