IN THE CASE OF: BOARD DATE: 23 June 2009 DOCKET NUMBER: AR20090003941 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 military records be corrected to show his date of birth as 8 May 1949 vice 8 March 1949. He also requests that his rank be changed to sergeant (SGT)/E-5. 2. The applicant states, in effect, that his date of birth is wrong on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). He offers that he never received paperwork promoting him to E-5. 3. The applicant provides a copy of his driver's license and DA Form 1811 (Physical and Mental Status on Release from Active Service). 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 enlisted in the Regular Army on 21 January 1969. His date of birth was listed as 8 May 1949. The applicant was honorably released from active duty on 25 August 1970. 3. The applicant's DD Form 214 shows his date of birth as 8 March 1949. This form lists his rank/pay grade as specialist (SP4)/E-4 and his date of rank as 13 January 1970. 4. The applicant provided his Maryland driver's license that shows his date of birth as 8 May 1949. 5. The applicant's DA Form 1811 shows his rank as SGT. 6. The documents contained in the applicant's military record such as his enlistment contract, Report of Medical History, Report of Medical Examination, National Agency Check request, and his security clearance show his date of birth as 8 May 1949. 7. A Promotion Standing List, dated 27 July 1970, contained in the applicant's military record, shows that he was on the promotion standing list to the grade of SGT/E-5 with 519 points. The list indicated that promotions would be made from the list as quotas were received and vacancies occurred in the grade and military occupational specialty considered. 8. The applicant's DA Form 20 (Enlisted Qualification Record), item 33 (Appointments and Reductions), shows his grade as SP4/E-4 with a date of rank of 13 January 1970. 9. There are no documents or orders in the applicant's record that show he was promoted to the grade of SGT/E-5. 10. Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214. The regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. Section III, item 21, requires the preparer to enter the grade in which serving at the time of separation, indicating whether it is permanent or temporary; pay grade; and date of rank in items 5a, 5b and 6 from the DA Form 20. DISCUSSION AND CONCLUSIONS: 1. The documents contained in the applicant's military record verify that his date of birth is 8 May 1949. Therefore, the applicant’s DD Form 214 should be corrected to show his date of birth as 8 May 1949 instead of 8 March 1949. 2. Evidence of record shows that the applicant was promoted to E-4 in January 1970. There is no evidence, and the applicant did not provide any, to show that he was promoted to E-5. The fact that his DA Form 1811 shows his grade as SGT is not sufficient evidence to change his grade on his separation document. Therefore, in the absence of a promotion order to E-5 with an effective date of rank, there is no basis to approve his request. 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 amending his DD Form 214 to show his date of birth as 8 May 1949. 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 correction of his grade to E-5. ___________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) AR20090003941 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090003941 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1