IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100024426 


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, his rank be reinstated to sergeant/pay grade E-5.

2.  The applicant states:

* he was granted a discharge upgrade in September 1994
* his rank was not reinstated to pay grade E-5 once his discharge was upgraded

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army on 28 September 1979.  He completed training and was awarded military occupational specialty 94B (food service specialist).  He remained on active duty through continuous reenlistments.  He was promoted to sergeant/pay grade E-5 on 8 February 1983 and held that grade until 10 December 1984 when he was reduced to specialist four/pay grade E-4 due to misconduct.

3.  He was again promoted to sergeant/pay grade E-5 on 28 December 1987.  On 8 January 1988, it was discovered he did not meet the general education development requirements for E-5.  His promotion to E-5 was revoked.

4.  He reenlisted on 5 May 1988 for a period of 4 years in pay grade E-4.  He held pay grade E-4 from 5 May 1988 to 24 May 1989.

5.  He received nonjudicial punishment on:

* 25 May 1989 for being absent without leave and was reduced to pay grade E-3
* 25 July 1989 for failure to go and was reduced to pay grade E-2

6.  On 20 March 1990, he was discharged under other than honorable conditions for misconduct (pattern of misconduct).  On 8 July 1994, the Army Discharge Review Board upgraded his discharge to a general discharge.

7.  Item 4a (Grade, Rate, or Rank) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "PV2" [private two].  Item 4b (Pay Grade) shows the entry "E2."

8.  No evidence shows he was promoted to sergeant/pay grade E-5 again prior to his discharge on 20 March 1990.

DISCUSSION AND CONCLUSIONS:

1.  He contends his rank was not reinstated to pay grade E-5 once his discharge was upgraded in 1994.

2.  The evidence shows he was promoted to sergeant/pay grade E-5 in 1983, but he was reduced in rank due to misconduct.  He was again promoted to sergeant/pay grade E-5 in 1987, but his promotion orders were revoked because he did not meet educational requirements.  He was subsequently reduced to pay grade E-2 prior to his discharge.

3.  Since no evidence shows he was promoted to sergeant/pay grade E-5 again prior to his discharge on 20 March 1990, 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 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)                                         AR20100024426



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ABCMR Record of Proceedings (cont)                                         AR20100024426



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