BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20100028766 


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, correction of item 3 (Grade – Rate – Rank and Date of Appointment) of his DD Form 214 (Report of Separation from the Armed Forces of the United States) to show sergeant instead of corporal.

2.  The applicant states:

* he and another Soldier were told by their battalion commander they were promoted from corporal to sergeant and they would receive notification of the promotion, but they never did
* they were tractor and bulldozer operators with the 116th Engineer Combat Battalion of the 19th Engineer Combat Group
* the promotion was in May 1953
* he was told if he would reenlist for more time in the Army he would automatically be a sergeant

3.  The applicant provides:

* DD Form 214
* DD Form 256A (Honorable Discharge Certificate) from the U.S. Army Reserve (USAR)
* letter from a Member of Congress, dated 19 November 2010



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 into the Army of the United States on 18 October 1951.  He served in Korea and on 13 August 1953 he was honorably released from active duty in the temporary rank of corporal and transferred to the USAR to complete his remaining service obligation.

3.  Item 3 of his DD Form 214 shows the entry "CPL [corporal] (T) [temporary] 26 Mar 53 [26 March 1953]."

4.  Section 2 (Appointments, Promotions, or Reductions) of his DD Form 230 (Service Record) shows he was promoted to the temporary rank of corporal effective 27 March 1953.

5.  There are no orders showing he was promoted to sergeant in the available records.

6.  His Honorable Discharge Certificate from the USAR, dated 17 October 1959, shows his rank as corporal.

7.  Army Regulation 635-5 (Separation Documents) prescribes policies and procedures regarding separation documents.  This regulation prescribes the grade, rate, or rank, held by an individual at the time of his or her separation, indicating whether permanent or temporary, will be entered in item 3 of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was told he was promoted to sergeant prior to his release from active duty.

2.  His DD Form 214 shows his temporary rank as corporal at the time of his separation on 13  August 1953.  There are no promotion orders in his records and he did not provide any evidence showing he was promoted to sergeant prior to his separation.  In the absence of promotion orders to sergeant, regrettably, there is insufficient evidence on which to amend item 3 of his DD Form 214.

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 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)                                         AR20100028766



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ABCMR Record of Proceedings (cont)                                         AR20100028766



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