IN THE CASE OF:	  

		BOARD DATE:	   6 March 2015

		DOCKET NUMBER:  AR20140013196


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank and pay grade as sergeant (SGT)/E-5.

2.  He states his DD Form 214 does not show his pay grade at the time of his separation.
 
3.  The applicant provides copies of his DD Form 214 and SGT promotion orders. 

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 enlisted in the New York Army National Guard for a period of eight years on 10 August 2005.  He received a general discharge on 20 May 2009 and was transferred to the U.S. Army Reserve (USAR) Individual Ready Reserve (IRR) to complete his service obligation.

3.  He was ordered to active duty effective 4 October 2009.

4.  He was released from active duty (REFAD) effective 9 November 2010.  His DD Form 214 shows in item 4a (Grade, Rate, or Rank):  SPC, and in item 4b (Pay Grade):  E-4.

5.  He provided a copy of Orders B-11-107442, U.S. Army Human Resources Command, Alexandria, Virginia, dated 15 November 2011, showing he was promoted to SGT/E-5 effective 1 November 2011.

6.  His record does not show he was previously promoted to SGT/E-5.

7.  Army Regulation 635-5 (Separation Documents), in effect at the time, states in paragraph 2-1 that the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear cut record of active duty service at the time of release from active duty, retirement, or discharge.  For item 4a and 4b (Rank and Pay Grade) enter active duty grade of rank and pay grade at time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows he was promoted to SGT on 1 November 2011, after he was REFRAD on 9 November 2010.  There is no evidence showing he was promoted to SGT prior to his REFRAD.

2.  In view of the above, his request should be denied.

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)                                         AR20140013196



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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