RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 27 July 2004
DOCKET NUMBER: AR200099892
I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.
| |Mr. Carl W. S. Chun | |Director |
| |Mr. Edmund P. Mercanti | |Analyst |
The following members, a quorum, were present:
| |Mr. Melvin H. Meyer | |Chairperson |
| |Mr. Thomas E. O’Shaughnessy | |Member |
| |Mr. Eloise C. Prendergast | |Member |
The applicant and counsel if any, did not appear before the Board.
The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion,
if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that the grade in which he was
transferred to the Retired Reserve, and subsequently to the Retired List,
be corrected from pay grade E-4 to pay grade E-5.
2. The applicant states that he held the rank of sergeant for more than 2
years.
3. The applicant provides the orders promoting him to pay grade E-5.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which
occurred on 29 March 2000. The application submitted in this case is dated
20 October 2003.
2. 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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so. In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.
3. The applicant’s military records show that he enlisted in the Regular
Army on 15 January 1976, was awarded the military occupational specialty of
unit supply specialist, and was promoted to pay grade E-4. He was
honorably released from active duty on 11 January 1979.
4. He retained his status as a Reservist, being assigned to US Army
Reserve (USAR) troop program units, the USAR Control Group (Reinforcement),
the Army National Guard (ARNG), and the inactive ARNG.
5. He was promoted to pay grade E-5 on 16 April 1985.
6. He was reduced to pay grade E-4 on 3 June 1991 for inefficiency, based
on the approved recommendation of a reduction board.
7. Title 10, US Code, Section 1406, states that for non-regular
retirement, a soldier’s retired pay is based on the highest grade the
soldier held satisfactorily at any time in the armed forces.
DISCUSSION AND CONCLUSIONS:
1. The applicant served over 8 years in pay grade E-5, but was reduced to
pay grade E-4 for inefficiency.
2. A soldier who is reduced for inefficiency is not considered to have
served satisfactorily in the grade from which he was reduced, regardless of
the number of years he served in that grade.
3. As such, the applicant was properly placed on the Retired List in pay
grade
E-4 and his retired pay is properly based on pay grade E-4.
4. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 29 March 2000; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 28 March 2003. However, the applicant did not file within the 3-
year statute of limitations and has not provided a compelling explanation
or evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.
BOARD VOTE:
________ ________ ________ GRANT RELIEF
________ ________ ________ GRANT FORMAL HEARING
___mhm_ ___ecp__ ___tos___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that 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.
2. As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations
prescribed by law. Therefore, there is insufficient basis to waive the
statute of limitations for timely filing or for correction of the records
of the individual concerned.
_________Melvin H. Meyer__________
CHAIRPERSON
INDEX
|CASE ID |AR2004099892 |
|SUFFIX | |
|RECON |YYYYMMDD |
|DATE BOARDED |20040727 |
|TYPE OF DISCHARGE |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
|DATE OF DISCHARGE |YYYYMMDD |
|DISCHARGE AUTHORITY |AR . . . . . |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. | |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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