RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 12 June 2007
DOCKET NUMBER: AR20060017046
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.
Ms. Catherine C. Mitrano
Director
Mr. Dean L. Turnbull
Analyst
The following members, a quorum, were present:
Ms. LaVerne M. Douglas
Chairperson
Mr. Edward E. Montgomery
Member
Ms. Rea M. Nuppenau
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 her records be corrected to show her highest pay grade achieved was specialist/pay grade E-4.
2. The applicant states she was promoted to pay grade E-4 in 15 October 2002.
3. The applicant provides a copy of her DD Form 214WS (DD Form
214 Worksheet) for the period ending 18 February 2003.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error which occurred on 18 February 2003. The application submitted in this case is dated 27 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 applicants failure to timely file.
3. The applicant's military service records show she entered active duty as a private first class on 15 August 2000. She completed basic combat training and advanced individual training and was awarded the military occupational specialty 92S1O (Laundry and Textile Specialist). According to her military service records the highest pay grade she held while on active duty was private first class/pay grade E-3.
4. Her last significant duty assignment was with the 229th Combat Service Company, Supply Services Direct Support, Fort Polk, Louisiana. During this assignment, the applicant refused nonjudicial punishment under Article 15, Uniform Code of Military Justice, and demanded a court-martial. The applicant records do not contain a copy of that court-martial proceeding.
5. On 18 February 2003, the applicant was discharged under honorable conditions after serving 2 years, 6 months, and 4 days of active service.
6. Item 4a and 4b (Grade, Rate or Rank) and (Pay Grade) of the DD Form
214WS Worksheet shows Specialist/E-4.
7. There are no orders in the applicant's records which show the applicant was promoted to Specialist/pay grade E-4 before she was separated from active duty.
8. The official DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to the applicant upon separation for the period ending
18 February 2003 shows in item 4a and 4b private/pay grade E-2. Also, the applicant accepted this same document by her own authentication in item
21 (Signature of Member Being Separated).
9. Army Regulation 635-5 (Personnel Separation), paragraph 2-4, h(4), states, in effect, that in completing item 4a and 4b of the DD Form 214, enter active duty grade or rank and pay grade at time of separation from active duty.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that her highest pay grade achieved was pay grade
E-4, because she was promoted on 15 October 2002.
2. Evidence of records show there are no orders that promoted the applicant to Specialist/pay grade E-4 prior to separation from active duty. Her final separation document shows that she was separated as a private/pay grade E-2.
3. While the applicant's records show that she was serving in pay grade E-3 when she was being processed for discharged, it must be presumed that she was reduced to pay grade E-2 by her summary court-martial. Therefore, she is not entitled to correction of her records.
4. In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.
5. Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 February 2003; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
17 February 2006. 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
___lmd__ ___rmn__ ___eem__ 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.
_________LaVerne M. Douglas______
CHAIRPERSON
INDEX
CASE ID
AR20060017046
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070612
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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