RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 February 2007
	DOCKET NUMBER:  AR20060011461 


	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. Gerard W. Schwartz

Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Ted S. Kanamine

Chairperson

Mr. Larry C. Bergguist

Member

Ms. LaVerne M. Douglas

Member

	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 rank, pay grade, and effective date of pay grade shown on his discharge document be corrected.

2.  The applicant states, in effect, that at the time of his separation from active duty his rank was specialist (SPC)/pay grade E-4; however, his discharge document shows private first class (PFC)/pay grade E-3.  He adds, in effect, that he requests correction of the rank and pay grade on his discharge document to allow him to reenlist in the Army National Guard as a SPC/E-4.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 21 June 1991, and
DD Form 2A (Reserve), Armed Forces of the United States - Geneva Conventions Identification Card, issued 23 May 1991.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 21 June 1991, the date of his release from active duty (REFRAD).  The application submitted in this case is dated 9 August 2006.

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 limitations 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 service records show that he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 9 July 1987.  On 22 June 1988, the applicant entered active duty in the Regular Army (RA) for a period of 3 years.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 54B (Chemical Operations Specialist).  He was honorably REFRAD on 21 June 1991 after completing
3 years of net active service.

4.  The applicant's military service records contain a copy of his DA Form 2-1 (Personnel Qualification Record).  This document shows, in pertinent part, in Item 18 (Appointments and Reductions) that the applicant was promoted to the rank of PFC, with a date of rank of 1 August 1989.  There is no entry for promotion to SPC (E-4).

5.  The applicant's military service records are absent copies of any promotion orders, promotion documents, or reduction instruments.

6.  The applicant's military service records contain a copy of a DD Form 93 (Record of Emergency Data), dated 10 January 1991.  Item 14 (Signature of Service Member) of this document shows that the applicant placed his signature on the document along with the notation "E-4."  The applicant's authentication of the document was witnessed by another Soldier, who also placed his signature on the DD Form 93.

7.  The applicant's military service records contain a copy of Headquarters,
258th Personnel Service Center, Wuerzburg, Germany, Orders 51-42, dated
2 April 1991, which show that the applicant was reassigned to the U.S. Army Transition Point, Fort Dix, New Jersey, for transition processing.  These orders show, in pertinent part, the applicant's rank at that time was SPC (E-4).

8.  The applicant's military service records contain a copy of a DA Form 664 (Service Member's Statement Concerning Compensation from the Veterans Administration), dated 21 May 1991, which shows, in pertinent part, that the applicant printed his full name, pay grade (i.e., "E-4"), and Social Security Number on the form, and also placed his signature on the document.

9.  The applicant's military service records contain a copy of a DA Form 1811 (Physical Data and Aptitude Test Scores Upon Release from Active Duty), dated 5 June 1991.  The principal purpose of this document is to authorize the Soldier's reenlistment within a specified time, without physical examination or without the requirement for mental testing.  The instructions on this form are as follows, "Prepare in triplicate.  Original and duplicate will be given to individual concerned. Triplicate will be filled in individual's Military Personnel Records Jacket."
This document shows, in pertinent part, that the applicant's grade at that time was entered as "PFC."  This document also shows that the sergeant major, serving as the Army Transition Point Sergeant Major, placed her signature on the document.  

10.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Training Center and Fort Dix, Transition Point, Fort Dix, New Jersey, Orders 156-019, dated 5 June 1991, which show that the applicant was REFRAD on 21 June 1991.  These orders also show, in pertinent part, the applicant's rank at that time was PFC (E-3).
11.  The applicant's military service records contain a copy of Headquarters,
86th U.S. Army Reserve Command, Forest Park, Illinois, Orders 010-028, dated 26 January 1993, which show that the applicant was reassigned from the
379th Chemical Company, Chicago, Illinois, to the USAR Control Group (Annual Training), St. Louis, Missouri, effective 1 February 1993.  These orders show, in pertinent part, the applicant's rank at that time was PFC (E-3).

12.  The applicant's military service records contain a DD Form 214, with an effective date of 21 June 1991.  Item 4a (Grade, Rate or Rank) of this document contains the entry "PFC"; Item 4b (Pay Grade) contains the entry "E3"; and Item 12 (Record of Service), Block h (Effective Date of Pay Grade) contains the entry "89 08 01" (i.e., 1 August 1989).

13.  In support of his application, the applicant provides a copy of his DD Form 2A (Reserve) and DD Form 214.  The DD Form 2A (Reserve) shows, in pertinent part, that the Identification (ID) Card was issued on 23 May 1991, the applicant's grade was SPC/E-4, and his expiration of term of service (ETS) from the USAR was 8 July 1995.  The DD Form 214 shows, in pertinent part, that the applicant was REFRAD on 21 June 1991 in the grade of PFC (E-3).

14.  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 also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record (PQR), Enlisted/Officer Record Brief (ERB/ORB), or any other document authorized for filing in the Military Personnel Records Jacket (MPRJ) or Official Military Personnel File (OMPF).

15.  The Army Separation Documents regulation, in effect at the time of the applicant's release from active duty, contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 4a (Grade, Rate or Rank) and Item 4b (Pay Grade) are to enter the active duty grade or rank and pay grade at the time of separation, as taken from the applicant's PQR or ERB/ORB. The instructions for Item 12h (Effective Date of Pay Grade) are to enter the effective date of promotion to the current pay grade from the most recent promotion order (or reduction instrument).


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the rank and pay grade shown on his discharge document should be corrected because he held the rank and pay grade of SPC (E-4) when he was separated from active duty.

2.  The evidence of record shows that the applicant was promoted to the rank of PFC (E-3) on 1 August 1989.  The applicant's military service records are absent promotion orders or any other document promoting the applicant to the grade of SPC (E-4) while he was on active duty.  Despite this fact, documents filed in the applicant's military service records indicate that he held the grade of SPC (E-4) as early as 10 January 1991 (i.e., the DD Form 93) and as late as 21 May 1991 (i.e., the DA Form 664).  The applicant's military service records are absent any reduction document/instrument, which might account for the change in rank from SPC to PFC during the period 21 May 1991 through the date he was REFRAD on 21 June 1991.  However, subsequent documents filed in the applicant's military service records (i.e., the DA Form 1811 and Orders 156-019, dated 5 June 1991) indicate that the applicant's grade was PFC (E-3).  It is noteworthy that the DA Form 1811 was specifically prepared to document the applicant's status on active duty and shows his grade as PFC, at that time.  In addition, the applicant's REFRAD orders, dated 5 June 1991, and DD Form 214, with an effective date of 21 June 1991, also show his grade as PFC (E-3). Moreover, orders reassigning the applicant while he was in the USAR also show his grade as PFC (E-3).

3.  The evidence of record shows that the DD Form 2A (Reserve) ID Card was issued to the applicant on 23 May 1991, which was prior to 5 June 1991; the date when the applicant's military service records show his rank changed from SPC (E-4) to PFC (E-3), for reasons which are not known to this Board.  Therefore, the applicant's Reserve ID Card, issued on 23 May 1991, provides insufficient documentary evidence to authorize a change to the rank and pay grade shown on his DD Form 214, with an effective date of 21 June 1991.

4.  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 this requirement.


5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 June 1991; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
20 June 1994.  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.

6.  The applicant is advised that, if he has promotion orders, a DA Form 4187, or other documentary evidence announcing his promotion to the rank of specialist/ pay grade E-4, with an effective date of 5 June 1991 or later, and prior to his release from active duty (i.e., 21 June 1991), and/or pay documents spanning the period May 1991 through June 1991 (e.g., Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statements (LES), Settlement Voucher for Final Pay, etc.) showing his rank and pay grade throughout this period consistently remained SPC/E-4, then he may resubmit his application.  However, the applicant is advised that he must submit his application for reconsideration, along with the necessary supporting documentation, within
1 year of the date of this Record of Proceedings.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___TSK__  ___LCB_  ___LMD _  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.




_____Ted S. Kanamine_____
          CHAIRPERSON




INDEX

CASE ID
AR20060011461
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/27
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19910621
DISCHARGE AUTHORITY
AR 635-200, Chapter 4
DISCHARGE REASON
Expiration of Term of Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
129.0400.0000
2.
131.0500.0000
3.

4.

5.

6.