IN THE CASE OF:	  

		BOARD DATE:	  22 October 2015

		DOCKET NUMBER:  AR20150003152 


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, in effect, correction of the rank and grade on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show specialist four (SP4)/E-4 and that he be paid the monies he was due for his separation pay when he was released from active duty on 16 September 1966, plus the interest accrued. 

2.  The applicant states he was discharged from active duty with E-3 "mustering out" pay when in reality he was an E-4.  He was not paid what he was due and he expects payment plus the interest he is owed for the last 48 years.  

3.  The applicant provides his DD Form 214 and DA Form 20 (Enlisted Qualification Record).

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’s records show he was inducted into the Army of the United States on 7 October 1964 in the rank/grade of private (PVT)/E-1.  He was assigned to Company B, 709th Military Police (MP) Battalion, Germany, on 10 January 1966.

3.  His record contains several personnel, medical, and legal documents that all show his rank as PFC.  
   
4.  General Orders Number 12, dated 7 September 1966, issued by Headquarters (HQ), 709th MP Battalion, awarded him the Army Good Conduct Medal (1st Award).  These orders show his rank as PFC.

5.  Special Orders Number 259, dated 16 September 1966, issued by HQ, U.S. Army Personnel Center, Fort Hamilton, NY, released him from active duty effective 16 September 1966 and transferred him to the U.S. Army Reserve (USAR) Control Group (Annual Training).  These orders show his rank as PFC.

6.  He was honorably released from active duty on 16 September 1966 and he was transferred to the USAR.  Item 3a (Grade, Rate or Rank) of the DD Form 214 he was issued contains the entries "PFC - E-3."  Item 3b (Date of Rank) contains the entry "10 June 1965."

7.  His record contains:

   a.  A DA Form 20 wherein in item 33 (Appointments and Reductions) it shows he was promoted to PVT/E-2 (Permanent (P)) on 7 February 1965, PFC/E-3 (P) on 10 June 1965, and his rank/grade as PFC/E-3 (P) in the USAR on 17 September 1966.  

   b.  A USAAC Form 213 (Search Request), dated 28 December 1966, wherein a request was submitted to verify his grade as he claimed the grade of E-4 and all his records from 1 January to 1 September 1966 showed his grade as E-3. 

	c.  A USAAC Form 368 (Report of Morning Report Search), dated 28 March 1967, wherein it shows a search of Company B, 709th MP Battalion’s records was made for the period 1 January to 1 September 1966.  This form contains the entries “31 May - specialist four (SP4), E-4” and “Enlisted member promoted from PFC, E-3.”

8.  The applicant provides and his record contains a second DA Form 20 wherein in item 33 the line that showed his rank/grade as PFC/E-3 (P) in the USAR on 17 September 1966 was lined out and the entries "SPC/E-4 (Temporary (T), 31 May 1966" and "SP4/E-4 (P), 17 September 1966".  This form also shows his rank/grade/date of rank as "SP4 E-4 17 Sep 66" in item 2 (Grade) and item 3 (Date of Rank).

9.  Letter Orders Number 09-1061398, dated 23 September 1970, issued by the U.S. Army Administration Center, St. Louis, MO, honorably discharged him from the USAR Control Group effective 6 October 1970.  These orders show his rank as PFC. 

10.  Title 31, U. S. Code (USC), section 3702, also known as the Barring Act, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.  

DISCUSSION AND CONCLUSIONS:

1.  His record shows he was promoted to the permanent rank of PFC on 10 June 1965.  A DA Form 20 that he provides and that was contained in his records shows he was further promoted to the temporary rank of SP4 on 31 May 1966.  It also shows in item 33 that he was permanently appointed to the rank of SP4 effective 17 September 1966.  Item 2 of this form also shows his rank as SP4.  As such, it appears he was promoted to the rank/grade of SP4/E-4 on 31 May 1966, prior to his release from active duty, but that the promotion was not reflected on other documents at the time of his separation.  In view of the foregoing, it appears the rank/grade on his DD Form 214 should reflect SP4/E-4.

2.  Pay records from over 48 years ago are not available for review with this case.  Consequently, the Board is unable to determine whether he was correctly paid any separation pay due upon his release from active duty.  Regardless, the statute of limitations for a claim against the Government expired in 1972, 6 years after the date of the applicant's release from active duty.





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 the entries in item 3 and item 4 of his DD Form 214 to show "SP4 E-4" and "17 Sep 66." 

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 paying him any monies related to the above change to his records.




      _______ _   _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)                                         AR20150003152





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ABCMR Record of Proceedings (cont)                                         AR20150003152



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