RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 27 March 2007 
	DOCKET NUMBER:  AR20060012020 


	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.


x

	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 report of separation (DD Form 214) be corrected to reflect his rank as a staff sergeant (SSG)/E-6. 

2.  The applicant states that he served in the rank of SSG and his DD Form214 was prepared to reflect his rank as a specialist four, which he believes to be a mistake. 

3.  The applicant provides a copy of a certificate of achievement dated 14 December 1979 and a copy of an enlistment contract dated 22 April 1981, both of which indicate his rank as a SSG.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 September 1986.  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 enlisted on 7 September 1966 for a period of 3 years.  He completed his basic combat training at Fort Bragg, North Carolina and his advanced individual training (AIT) at Aberdeen Proving Ground, Maryland.   

4.  He completed his training as a wheel vehicle mechanic and remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 5 June 1977.  

5.  On 12 August 1983, the applicant submitted a request for a waiver to reenlist because he had received nonjudicial punishment (NJP) on three occasions during the period of December 1980 through July 1983.  He indicated that the NJP was the result of his consumption of alcoholic beverages and that since that time he had completed the post alcohol and drug abuse program and was 
striving to be a professional noncommissioned officer.  His chain of command supported his request and it was approved on 1 September 1983.  He reenlisted on 23 September 1983 for a period of 3 years.  

6.  On 1 December 1983, he was transferred to Grafenwoehr, Germany for duty as a maintenance supervisor.    

7.  On 30 January 1985, NJP was imposed against him for operating a motor vehicle while drunk.  His punishment consisted of a reduction to the pay grade of E-5.

8.  On 15 August 1985, NJP was imposed against him for striking a female in the face with his open hand while at a bar in Grafenwoehr.  His punishment consisted of a reduction to the pay grade of E-4 and a forfeiture of pay.

9.  On 26 November 1985, the applicant was notified that he had been selected by the Department of the Army Qualitative Management Program (QMP) to be barred from reenlistment based on the presence of five records of NJP (DA Form 2627) contained in his Official Military Personnel File (OMPF).

10.  The applicant departed Germany on 29 November 1985 and was transferred to Fort Riley, Kansas, where he remained until he was honorably released from active duty (REFRAD) in the pay grade of E-4 on 30 September 1986 and transferred to the Retired List effective 1 October 1986.  He had served 20 years and 24 days of total active service.  His DD Form 214 reflects that he was REFRAD in the pay grade of E-4.

11.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect information that is current and in effect as of the date of separation or discharge.  Events or information that changes or occurs after the effective date of the DD Form 214 will not be entered retroactively on that form.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant was serving in the pay grade of E-4 at the time he applied for voluntary retirement and was approved for REFRAD and transfer to the Retired List.  

2.  Accordingly, His DD Form 214 properly reflects the grade he held at the time of his REFRAD and transfer to the Retired List. 

3.    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.
    
4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 September 1986; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 September 1989.  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

x___  __x.___  x____  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.




_____x_____
          CHAIRPERSON



INDEX

CASE ID
AR20060012020
SUFFIX

RECON

DATE BOARDED
20070327
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.110.0000
189/corr 214
2.

3.

4.

5.

6.