RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 6 March 2007
DOCKET NUMBER: AR20060011837
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 | |Acting Director |
| |Mrs. Nancy L. Amos | |Analyst |
The following members, a quorum, were present:
| |Mr. James E. Anderholm | |Chairperson |
| |Mr. Scott W. Faught | |Member |
| |Mr. Roland S. Venable | |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 that his rank on his DD Form 214 (Certificate of
Release or Discharge from Active Duty) be corrected to show he was a
Specialist Four (SP4), E-4.
2. The applicant states that his DD Form 214 shows an incorrect rank and
pay grade.
3. The applicant provides no additional evidence.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which
occurred on 10 July 1991. The application submitted in this case is dated
8 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 enlisted in the Regular Army on 2 May 1989. He completed
basic training and advanced individual training and was awarded military
occupational specialty 11B (Infantryman).
4. The applicant was advanced to Private First Class (PFC), E-3 on 1
February 1990.
5. On 15 May 1991, a Physical Evaluation Board (PEB) found the applicant
to be physically unfit for retention and recommended he be placed on the
Temporary Disability Retired List (TDRL). On 11 June 1991, the applicant
concurred with the findings and recommendation of the PEB.
6. Orders dated 19 June 1991 released the applicant from assignment and
duty because of physical disability with an effective date of retirement of
10 July 1991 and placement on the retired list on 11 July 1991.
7. There are no orders/DA Form 4187 (Personnel Action) in the applicant’s
records to show he was advanced to SP4, E-4. Item 18 (Appointments and
Reductions) of his DA Form 2-1 (Personnel Qualification Record) indicates
he was advanced to SP4 effective 1 July 1991.
8. On 10 July 1991, the applicant was released from active duty by reason
of temporary physical disability after completing 2 years, 2 months, and 9
days of creditable active service. His DD Form 214 shows his rank and
grade as PFC, E-3.
9. Army Regulation 600-200 (Enlisted Personnel Management System), chapter
7 at the time, governed enlisted promotions. Paragraph 7-6h(2) stated
Soldiers not qualified for reenlistment under the provisions of Army
Regulation 601-280, paragraph 2-20 were in a nonpromotable status.
10. Army Regulation 601-280 (Total Army Retention Program), paragraph
2-20a(8.1) at the time, stated Soldiers being separated with less than
20 years active Federal service by reason of physical disability were
ineligible for immediate reenlistment.
DISCUSSION AND CONCLUSIONS:
1. The only evidence available that shows the applicant was advanced to
SP4 prior to his separation on 10 July 1991 due to physical disability is
his DA Form 2-1. That document shows he was advanced to SP4 on 1 July
1991.
2. However, the applicant was not eligible for advancement to SP4 on 1
July 1991. He was in a nonpromotable status on that date due to the reason
for his separation.
3. Regrettably, there is insufficient evidence to grant the relief
requested.
4. Records show the applicant should have discovered the alleged error or
injustice now under consideration on 10 July 1991; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on 9 July 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.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__jea___ __swf___ __rsv___ 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.
__James E. Anderholm__
CHAIRPERSON
INDEX
|CASE ID |AR20060011837 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20070306 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Mr. Schwartz |
|ISSUES 1. |100.00 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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