RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 January 2008 DOCKET NUMBER: AR20070010213 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Ms. Deyon D. Battle Analyst The following members, a quorum, were present: Mr. John Infante Chairperson Mr. Eric N. Anderson Member Mr. David K. Haasenritter Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his Report of Transfer or Discharge (DD Form 214) to show that he was released from active duty (REFRAD) in the rank and pay grade of staff sergeant (E-6). 2. The applicant states, in effect, that he was promoted to the pay grade of E-6 prior to his discharge; however, the incorrect pay grade was annotated on his DD Form 214. 3. The applicant provides in support of his application, a copy of his DD Form 214; a copy of a request for orders for promotion dated 29 August 1968; a copy of Special Orders Number 2023 dated 3 April 1968 awarding him the Army Commendation Medal; a copy of a Presentation of Award of the Army Commendation Medal dated 19 September 1968; and a copy of General Orders Number 93 dated 30 April 1968 awarding him the Army Good Conduct Medal. 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. On 6 September 1966, the applicant was inducted into the Army in Minneapolis, Minnesota. He successfully completed his training as an Infantry Indirect Fire Crewman. 3. The applicant was promoted to the pay grade of E-2 on 6 September 1966 and he was promoted to the pay grade of E-3 on 25 January 1967. He was transferred to Vietnam on 27 January 1967. 4. The applicant was promoted to the temporary pay grade of E-4 on 8 June 1967 and he was promoted to the temporary pay grade of E-5 on 4 November 1967. He was transferred to the Continental United States on 17 February 1968 and he was assigned to Headquarters and Headquarters Company, 4th Battalion, 46th Infantry, 1st Armored Division, Fort Hood, Texas. 5. On 29 August 1968, the Commander, 4th Battalion, 46th Infantry, 1st Armored Division submitted a request for orders to the Commanding General, 1st Armored Division requesting that the applicant be promoted to the temporary pay grade of E-6, under the provisions of Army Regulation 600-200, paragraph 7-7, with an effective date of 29 August 1968. 6. There is no evidence in the available record, nor has the applicant provided any evidence to show that promotion orders were ever published or that he served in the rank and pay grade of staff sergeant, E-6. 7. Special Orders Number 216 were published on 30 August 1968, releasing the applicant from active duty in the pay grade of E-5, with an effective date of 5 September 1968, and transferring him to the United States Army Control Group (Annual Training). 8. Accordingly, on 6 September 1968, the applicant was REFRAD in the pay grade of E-5, at the expiration of his term of service and he was transferred to the USAR Control Group (Annual Training) to complete his Reserve obligation. Items number 5a and 5b on the DD Form 214 that he was furnished shows that he was REFRAD in the temporary grade, rate or rank and pay grade of sergeant (SGT(T)) E-5. 9. Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of REFRAD or discharge. DISCUSSION AND CONCLUSIONS: 1. In accordance with the applicable regulation, the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of REFRAD or discharge and his DD Form 214 shows that he was separated in the pay grade of E-5. 2. The available evidence indicates that a request for orders was submitted to the Commanding General, 1st Armored Division requesting that the applicant be promoted to the temporary pay grade of E-6. However, there is no evidence in the available record, nor has the applicant submitted any evidence to show that orders were ever published promoting him to the pay grade of E-6 or that he ever served in the rank of staff sergeant. 3. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 4. In view of the foregoing, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __JI _ __ENA__ __DKH__ 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. ____John Infante _____ CHAIRPERSON INDEX CASE ID AR20070010213 SUFFIX RECON DATE BOARDED 20080131 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 189 110.0000/SEPARATION DOCUMENT 2. 302 129.0000/PAY GRADE 3. 4. 5. 6.