IN THE CASE OF: BOARD DATE: 23 December 2008 DOCKET NUMBER: AR20080009690 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, that his rank be corrected to show specialist four/pay grade E-4 and further requests pay at the grade of E-4 for six months while he was stationed in Oklahoma (OK) in lieu of private first class (PFC)/pay grade E-3. 2. The applicant states, in effect, that he has a document which indicates he was an E-4 and that he didn't receive pay for that pay grade. 3. The applicant provides a self-authored note, dated 18 September 2007; DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); 1st Battalion, 2d Infantry Unit Order Number 5, dated 23 March 1967; Headquarters, 1st Infantry Division Special Orders Number 360, dated 26 December 1967; and 2nd Howitzer Battalion (105mm), 2nd Artillery, Fort Sill, OK, Special Orders Number 36, dated 4 March 1968 in support of his application. 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 record shows that he was inducted into the Army of the United States and entered active duty on 1 July 1966. He completed basic and advanced individual training and was awarded military occupational specialty 76K (General Supply Specialist). The highest rank he attained while serving on active duty was the grade of PFC. 3. The applicant's DD Form 214 shows that on 28 June 1968 he was honorably released from active duty after completing 1 year, 11 months, and 28 days of active military service. He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation. 4. The applicant provided 1st Battalion, 2d Infantry Unit Order Number 5, dated 23 March 1967, appointing him to the temporary grade of SP4. He also provided a reassignment order dated 4 March 1968 which shows his grade as SP4. 5. The applicant's DA Form 20 (Enlisted Qualification Record), item 2 (Grade) shows the entry "PFC E-3." Item 33 (Appointments and reductions) on his DA Form 20 shows the entry, "SP4 E4 (T) 23Mar67 SO84 Hq1stInfDiv USARPAC 1967" (line through in the original). The applicant's personnel records contain a DD Form 173 (Joint Messageform), dated 26 March 1968 that indicates the applicant was not promoted to SP4 on Special Orders Number 84. Item 48 (Date of Audit) shows the applicant last audited the DA Form 20 on 6 March 1968. 6. The applicant's records contain Headquarters, 1st Infantry Division, Special Orders Number 197, dated 16 July 1967; and Headquarters, 1st Infantry Division, General Orders Number 8905, dated 14 December 1967 (both dated later than the appointment order to SP4) that show his rank/grade as PFC/E-3. 7. The applicant's 28 June 1968 DD Form 214 and separation orders extract, Special Orders Number 154, dated 25 June 1968, published by Headquarters, U.S. Army Artillery and Missile Center, both show his rank/grade as a PFC/E-3. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his records should be corrected to show the rank of SP4/pay grade E-4 and that he should be paid six months of back pay for pay grade E-4 was given careful consideration. However, it was determined that the available evidence was insufficient to support his claim. 2. The applicant provided two documents which indicated his rank as SP4/pay grade E-4. All other pertinent documents in his available records show his rank as PFC/pay grade E-3, thus the preponderance of available evidence leads to the assumption that the appointment orders may have been revoked or rescinded. 3. There is insufficient evidence upon which to base correction of the applicant's records as requested. As a result, the regulatory burden of proof necessary to support this request has not been satisfied and there is no basis to amend the applicant's records as requested. 4. 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 did not submit sufficient evidence that would satisfy this requirement. This action in no way diminishes the sacrifices made by the applicant in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms. 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) AR20080009690 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080009690 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1