IN THE CASE OF:
BOARD DATE: 3 June 2014
DOCKET NUMBER: AR20130017569
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 records to show he was promoted from pay grade E-4 to pay grade E-5.
2. The applicant states:
* His orders came down promoting him to E-5; however, his records were flagged
* It was unjust because he was placed on light duty by a doctor and his captain gave him an order to go into the heat of battle
* He refused because of the doctor's orders and as a result, his records were flagged
* The flag was later removed when the doctor told the captain he could not do it; however, his pay grade remained an E-4
3. The applicant provides a self-authored, undated statement and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 was inducted into the Army of the United States on 25 April 1967, in pay grade E-1. He completed training as a light weapons infantryman.
3. He was promoted to:
* pay grade E-2 (permanent), on 25 August 1967
* pay grade E-3 (permanent), on 14 September 1967
* pay grade E-4 (temporary), on 1 January 1968
4. The applicant was honorably released from active duty (REFRAD) on 24 April 1969, at the expiration of his term of service. His DD Form 214 shows he was REFRAD in pay grade E-4 (temporary).
5. A review of the available records fails to show that orders were ever published promoting the applicant to pay grade E-5 while he was in the Army.
6. Army Regulation 635-5 (Separation Documents), in effect at that time, served as the authority for the preparation of the DD Form 214. It provided that the
DD Form 214 would be prepared to reflect an individual's service, as it existed on the date of REFRAD or discharge. The regulation stated to enter in item
5a (Grade, Rate or Rank) and 4b (Pay Grade) the active duty grade or rank and pay grade at time of separation.
7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions have been noted. His supporting evidence has been considered.
2. However, there is no evidence in the available record, nor has the applicant provided sufficient evidence, showing that orders were ever published promoting him to pay grade E-5.
3. The available evidence shows he was temporarily promoted to pay grade E-4 on 1 January 1968. This information is properly shown on his DD Form 214.
4. 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. He has failed to meet this criterion.
5. In view of the foregoing, 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) AR20130017569
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