IN THE CASE OF: BOARD DATE: 3 March 2009 DOCKET NUMBER: AR20080017552 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 his military records to show that he was discharged in the rank of sergeant (SGT), pay grade E-5. He also requests that his discharge certificate be changed from specialist (SPC), pay grade E-4 to SGT. He further requests that his retirement status reflect the same change. 2. The applicant states that his discharge certificate shows the wrong rank. 3. The applicant provides, in support of his application, copies of his promotion orders and promotion certificate. He did not provide a copy of the subject discharge certificate. 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 available evidence of record shows: a. The applicant enlisted in the Regular Army on 2 April 1991 and that he was discharged on 26 June 1991. He had completed 2 months and 25 days of creditable active duty service. There is no available explanation for his discharge. His Certificate of Release or Discharge from Active Duty (DD Form 214), Member Copy 1, shows his rank as SPC with a date of rank the same as his date of entry on active duty. b. The applicant enlisted in the Nevada Army National Guard on 7 May 1996 in the rank of SPC. He was discharged without personal notice on 4 December 1996. He had completed 6 months and 28 days of net service this period. c. The applicant enlisted in the Wisconsin Air National Guard on 13 September 1997 in the rank of senior airman, pay grade E-4. On 5 May 1998, he entered active duty for training. He completed his initial training and was awarded a primary specialty of 2W111F (Aircraft Armament Trainee). He was released from active duty for training on 2 September 1998, having completed 3 months and 28 days of creditable active duty for training. d. On 18 November 1999, the applicant enlisted in the United States Army Reserve, in the rank of SPC. 3. Orders 336-6, Headquarters, 757th Transportation Battalion, Milwaukee, Wisconsin, dated 1 December 2000, promoted the applicant to the rank of SGT. The promotion was conditioned upon his completion of the Noncommissioned Officers Education System (NCOES) course required for promotion to SGT. In accordance with Army Regulation 140-158, paragraph 7-12d, the applicant would be reduced to the rank and pay grade held prior to promotion if he failed to meet the conditional requirements. The accompanying promotion certificate shows his rank as sergeant, effective 1 December 2000. 4. Orders C-04-209850, U.S. Army Reserve Personnel Command, dated 5 April 2002, released the applicant from the U.S. Army Reserve (USAR) Control Group (Annual Training), in the rank of SPC, and assigned him to the USAR Control Group (Reinforcement), effective the date of the order. 5. Orders D-02-405371, U.S. Army Human Resources Command, dated 17 February 2004, honorably discharged the applicant from the USAR in the rank of SPC. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that he was promoted to SGT and that his discharge certificate should show the same rank. 2. The evidence clearly shows that the applicant was promoted to the rank of SGT. However, this was a conditional promotion requiring subsequent completion of the required NCOES course. There is no evidence showing that he successfully completed the required course. 3. Subsequent orders, dated in 2002 and 2004, show his rank as SPC. This indicates that he may have been administratively reduced to his original rank of SPC as a result of not completing the required course. 4. The available evidence is insufficient in determining if the subject documents are in error. In the absence of evidence to the contrary, it is presumed that the applicant's records are correct in showing his rank as SPC. 5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement. 6. In view of the foregoing, there is no basis for granting the applicant's request. 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) AR20080017103 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080017552 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1