IN THE CASE OF:	

		BOARD DATE:	  26 January 2010 

		DOCKET NUMBER:  AR20090012980


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 block 6a (Grade, Rate, or Rank) of his DD Form 214 (Report of Separation from Active Duty) be corrected to show his rank as first lieutenant (1LT/O-2) vice second lieutenant (2LT/O-1).

2.  The applicant states he believes he was promoted to 1LT in the U.S. Army Reserve (USAR) after leaving active duty.  He adds his "most recent DD Form 214 sent to me June 29, 2009, does not show anything after my initial entry for active duty."

3.  The applicant provides a copy of his DD Form 214 for the period 4 May 1973 through 3 May 1975.

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 a member of the Reserve Officers' Training Corps at Indiana State University.  He graduated from college on 6 January 1973 and accepted an appointment as a USAR 2LT on the same date.

3.  The applicant entered active duty for 2 years on 4 May 1973.  On the same date, he established his Army of the United States (AUS) date of rank as a 2LT.  He served on active duty from 4 May 1973 through 3 May 1975.  He was then honorably released from active duty and assigned to the USAR Control Group (Annual Training).

4.  The applicant was promoted from 2LT to 1LT on 5 January 1976, 3 years following his USAR appointment.

5.  Army Regulation 624-100 (Promotion of Officers on Active Duty), then in effect, prescribed the policies and procedures for temporary promotion in the AUS of commissioned officers and warrant officers on active duty under the provisions of Title 10, U.S. Code, sections 3442, 3447, and 3449, and for the promotion of Regular Army officers in their permanent grades.  It did not apply to officers on active duty for training or with the Selective Service System, to promotion of Reserve officers in their permanent grades, or to officers of separate corps holding statutory positions in those corps.  It stated, in pertinent part, that USAR officers on active commissioned status would be promoted after 3 years as a Reserve officer as reflected in the Reserve promotion eligibility date.

6.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  It provides that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant wants his DD Form 214 for the period 4 May 1973 through 3 May 1975 to show he was a 1LT.

2.  The applicant was promoted to 1LT on 5 January 1976 while a member of the USAR Control Group (Annual Training).  This was 7 months after being released from active duty.

3.  Army Regulation 635-5 represents only active duty time.  The applicant was promoted after leaving active duty; therefore, his promotion to 1LT should not be reflected on 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 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)                                         AR20090012980



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ABCMR Record of Proceedings (cont)                                         AR20090012980



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