RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 April 2008
	DOCKET NUMBER:  AR20070017031 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that item 5a (Grade, Rate or Rank) on his DD Form 214 (Report of Transfer or Discharge) be corrected to show the temporary rank of sergeant.

2.  The applicant states, in effect, that item 5a on his DD Form 214 is incorrect.   

3.  The applicant provides unit orders, dated 5 September 1967; page 3 of his DA Form 20 (Enlisted Qualification Record); and a copy of his DD Form 214.

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 was inducted on 20 December 1965.  He served as a light vehicle driver in Vietnam and was released from active duty in the temporary rank of specialist four on 2 October 1967. 

3.  Item 5a on the applicant’s DD Form 214 shows the entry, “SP4 (T)” [specialist four (temporary)].  

4.  Headquarters, 863d Transportation Company (LT TRK) Unit Order Number 56, dated 5 September 1967, shows the applicant was appointed to the temporary acting noncommissioned grade of sergeant/E-5.   

5.  There are no orders which show the applicant was promoted to sergeant prior to his release from active duty.

DISCUSSION AND CONCLUSIONS:

The unit orders provided by the applicant show he was appointed to the temporary acting noncommissioned grade of sergeant/E-5 effective 5 September 1967.  There are no orders which show he was promoted to sergeant prior to his release from active duty.  Therefore, there is insufficient evidence on which to amend item 5a on his DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

PM_____  ___JH___  ___KJ___  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.



      ___            PM_____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070017031


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508