IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20100027913 


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 DD Form 214 (Report of Separation from the Armed Forces of the United States) to show his rank as sergeant.

2.  The applicant states, in effect, that he was promised a promotion to sergeant prior to discharge, but he was subsequently separated in the rank of corporal.

3.  The applicant provides copies of his DD Form 214 and his Honorable Discharge Certificate from the U.S. Army Reserve, dated 23 October 1956.

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 military records are not available to the Board for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, the Board is able to conduct a fair and impartial review of this case based on the applicant's DD Form 214.

3.  The applicant's DD Form 214 shows he:

	a.  was inducted into the Army of the United States on 4 January 1951;

	b.  was appointed to the temporary rank of corporal on 7 November 1951; and

	c.  was released from active duty on 3 October 1952 in the rank of corporal and transferred to the Enlisted Reserve Corps for 5 years.

4.  The Honorable Discharge Certificate the applicant provided indicates he served in the U.S. Army Reserve from 4 October 1952 until he was discharged on 23 October 1956 in the rank of corporal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his rank as sergeant because he was promised this rank prior to his release from active duty.

2.  The applicant's assertion that he was promised a promotion to sergeant is not in question.  Unfortunately, his military records are no longer available for review.  The available documentation shows the applicant was released from active duty in the rank of corporal and that he continued to hold this rank for 4 years as a member of the U.S. Army Reserve.

3.  Without documentary evidence showing the applicant was promoted to sergeant, or reasonably should have been promoted to sergeant, favorable action should not be taken.

4.  In view of the above, the applicant's request should be denied.







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)                                         AR20100027913



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ABCMR Record of Proceedings (cont)                                         AR20100027913



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