RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2007
	DOCKET NUMBER:  AR20060015539 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Joe R. Schroder

Member

Mr. Chester A. Damian

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 item 4a (Grade, Rate, or Rank), of 
his DD Form 214 (Certificate of Release or Discharge from Active Duty), be corrected to show the entry "SPC" instead of the entry "PFC", and item              4b (Pay Grade), be corrected to show the entry "E4", instead of "E3".

2.  The applicant states, in effect, that his DD Form 214 shows "PFC," that he was promoted to SPC before he left Bosnia, and that he had been reduced.  

3.  The applicant provides a copy of his DD Form 214 and DA Form 31 (Request and Authority for Leave) in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 23 August 1998, the date of his release from active duty.  The application submitted in this case is dated 23 October 2006 but was received for processing on 2 November 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 record shows he enlisted in the Regular Army on 6 April 1995. The applicant successfully completed basic combat training and advanced individual training at Fort Knox, Kentucky.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 19D, Cavalry Scout.  

4.  Item 18 (Appointments and Reductions), of his DA Form 2-1 (Personnel Qualification Record-Part II), shows that he was advanced to pay grade E-3, effective 6 April 1996.  The grade and date of rank for PV1, of 7 February 1997, was crossed out from the DA Form 2-1.


5.  The applicant provided a copy of his DA Form 31, dated 6 May 1998, which shows that he was approved for terminal leave from 24 July 1998 to 23 August 1998, 31 days, in the rank and pay grade of SPC.

6.  The applicant continued to serve until he was released from active duty on 23 August 1998, in pay grade E-3.  He was transferred to the U. S. Army Reserve (USAR) Control Group (Reinforcement).  He was honorably discharged from the USAR in the rank of "PFC."

7.  Item 4a, of his DD Form 214, shows the entry "PFC," item 4b shows the entry "E3," and item 12h (Effective Date of Pay Grade), shows the entry "1996 04 06" (6 April 1996).

8.  Item 21 (Signature of Member being Separated), of his DD Form 214, has the applicant's signature.  By his signature he attested to information recorded on the DD Form 214 being correct and complete to the best of his knowledge.

9.  Army Regulation 635-5 provides instructions for the preparation of the         DD Form 214.  It states, in pertinent part, that item 4a and 4b will be completed to show the active duty grade or rank and pay grade at the time of separation.  It also states that item 12h (Effective Date of Pay Grade) will be completed to show the effective date of promotion to the current pay grade from the most recent promotion order or reduction instrument.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the applicant was advanced to pay grade    E-3, effective 6 April 1996.  There is no documentary evidence, and the applicant provided insufficient evidence to show he was promoted beyond pay grade E-3.  
Even though he requested terminal leave in the rank of SPC, which was approved for 31 days, prior to his release from active duty, there is no evidence to show that he served in the pay grade of E-4 or was officially advanced to pay grade E-4 while serving on active duty.

2.  The available evidence shows the applicant's rank and grade at the time of his release from active duty was and is correct as currently constituted.  The applicant attested to this by affixing his signature to the DD Form 214 on the date of his release from active duty.  Therefore, there is no basis to correct item 4a or 4b, of his DD Form 214.  

3.  The applicant alleges that he was promoted to SPC before he left Bosnia and that he had been reduced; however, there is no evidence, and the applicant has provided none, to support his allegations.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 23 August 1998; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 22 August 2001.  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

__JRS___  ___LDS_  _CD_____  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.




_____Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR20060015539
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070605
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19980823
DISCHARGE AUTHORITY
AR 635-200, chapter 4
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131
2.

3.

4.

5.

6.