IN THE CASE OF:	  

		BOARD DATE:	    24 September 2015

		DOCKET NUMBER:  AR20150001254 


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 Honorable Discharge Certificate, dated 7 May 1977, to show his rank as "staff sergeant" instead of "sergeant."

2.  The applicant states he recently discovered his 1977 Honorable Discharge Certificate reflects he was discharged in the rank of sergeant.  He has reviewed other paperwork and can substantiate that he was promoted to the rank of staff sergeant on 13 January 1976, nearly 17 months prior to his discharge.  He realized that it was his mistake in not noticing and seeking a correction earlier, but the correction of this error would make four generations of Army service personnel very proud.  He is proud of the time he served in the Army and would like the record to reflect the true rank that he attained prior to his discharge.  Based on the error in his records this seems to be the right thing to do.

3.  The applicant provides copies of the following:

* Special Orders (SO) Number 2
* Orders 89-122
* Honorable Discharge Certificate

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 U.S. Army Reserve (USAR) on 8 May 1971.  He entered active duty for training (ADT) on 3 September 1971.  He completed training and was awarded military occupational specialty (MOS) 52B (power generation equipment repairman).  He was released from ADT, in the rank and grade of private first class/E-3, on 15 January 1972 and was transferred to his Reserve unit.

3.  Item 32 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was promoted to the rank of sergeant in the USAR on 20 May 1974.

4.  His Army records contain and he provided a copy of SO Number 2, issued by Headquarters, 521st Maintenance Battalion on 13 January 1976, promoting him to staff sergeant in the USAR effective 13 January 1976 in MOS 62B (equipment maintenance advisor).

5.  His Army records also contain four DA Forms 1380 (Record of Individual Performance of Reserve Duty Training) – dated 26 April, 16 July, 28 July, and 14 August 1976 – showing his rank as sergeant.

6.  He provided copies of the following:

* Orders 89-122, issued by Headquarters, Fifth U.S. Army on 6 May 1977, honorably discharging him from the USAR effective 7 May 1977; the orders list his rank as sergeant
* Honorable Discharge Certificate, dated 7 May 1977, showing his rank as sergeant

7.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 (Burden of proof) of the regulation states 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.  The ABCMR decides cases on the evidence of record, it is not an investigative body.  Each application will be reviewed to determine whether the preponderance of the evidence shows that an error or injustice exists and

	(1)  If so, what relief is appropriate.

	(2)  If not, deny relief.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record shows the applicant was promoted in the USAR to sergeant effective 20 May 1974.  He was promoted in the USAR to staff sergeant effective 13 January 1976.  Four DA Forms 1380, dated between April and August 1976 show his rank as sergeant.  He was honorably discharged from the USAR on 7 May 1977.  His discharge orders and Honorable Discharge Certificate show his rank as "sergeant."

2.  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.

3.  It appears he may have been reduced in the USAR from staff sergeant to sergeant sometime after 13 January 1976 for reasons not shown in the available records.  The available DA Forms 1380 show he performed Reserve training in the rank of sergeant in April, July, and August 1976.  His USAR discharge orders as well as his Honorable Discharge Certificate show his rank as "sergeant."

4.  Although his complete USAR records are not available, it is presumed that the Army's administrative processing of his Honorable Discharge Certificate is correct.  The applicant has the burden of proving an error or injustice by the preponderance of evidence.  He has not shown the Honorable Discharge Certificate was annotated with the rank of sergeant in error or that in an injustice occurred.  

5.  Based on the preponderance of evidence, it appears he was appropriately discharged in the rank of sergeant.




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)                                         AR20150001254





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ABCMR Record of Proceedings (cont)                                         AR20150001254



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