RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 14 February 2008
DOCKET NUMBER: AR20070013266
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:
Mr. John T. Meixell
Chairperson
Ms. Carmen Duncan
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 Block 4b (Pay Grade) E-1; Block 11 (Primary Specialty) 3 years and 00 months; and Block 12h (Effective Date of Pay Grade) 2003 08 28 of his DD Form 214 (Certificate or Release or Discharge from Active Duty) be corrected.
2. The applicant states that on his separation date of 13 September 2003 he was a specialist, pay grade E-4. He signed an enlistment contract for 3 years but he was involuntarily extended for 3 months. He served 3 years and 3 months and his effective date of pay grade is false.
3. The applicant provides a copy of his DD Form 214 and DA Form 2-1 (Personnel Qualification Record, Part II).
CONSIDERATION OF EVIDENCE:
1. 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's military service record shows he entered active duty on
13 September 2000. He completed all the necessary training and was awarded the military occupational specialty (MOS) 14T (Patriot Missile Crewmember). The applicant was honorably released from active duty on 20 December 2003 after serving 3 years, 3 months, and 8 days of active service.
3. Block 4b of his DD Form 214 contains the entry E-1; Block 11 contains the entry "14T1O Patriot Missile Crewmember 03 YRS00 MOS;" and Block 12h contains the entry 2003 08 28.
4. His military service record contains a memorandum, Subject: Disqualification of Award of Good Conduct Medal (NFCS [Not Favorably Considered Statement]) dated 15 September 2003. The applicant was disqualified from receiving the Good Conduct Medal for violation of Article 112a, wrongful use, possession, etc., of a controlled substance. The memorandum was signed by his commander.
5. The applicant's military service records do not contain a copy of a promotion or reduction orders, or documentation of nonjudicial punishment.
6. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states, in pertinent part, that for:
a. Block 4 (Grade, Rate or Rank) enter the active duty grade or rank and pay grade at the time of separation from the ERB [Enlisted Record Brief];
b. Block 11 (Primary Specialty) from the ERB, enter the titles of all MOS served for at least 1 year and include for each MOS the number of years and months served. For time determination, 16 days or more count as a month. Do not count basic training and AIT [advanced individual training]; and
c. Block 12h (Effective Date of Pay Grade), from the most recent promotion order (or reduction instrument), enter the effective date of promotion to the current pay grade.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that Blocks 4b, 11, and 12h of his DD Form 214 should be corrected.
2. There is no evidence that shows the applicant served on active duty in his MOS 14T for more than 3 years.
3. There is no evidence in the applicant's military service records that show he was an E-4 on 13 September 2003. His record shows that he was disqualified from receiving the Good Conduct Medal for violation of Article 112a, wrongful use, possession, etc., of a controlled substance. It is reasonable to conclude that the applicant was reduced to pay grade E-1 on 28 August 2003 for violation of Article 112a.
4. A presumption of regularity must be applied, that what the Army did was correct. It is up to the applicant to prove otherwise. The applicant has not submitted any documentation to overcome the presumption of regularity. Therefore, he is not entitled to correction to Blocks 4b, 11, and 12h of his DD Form 214.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__JTM_ _ __CD _ _ __RMN__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
___John T. Meixell __
CHAIRPERSON
INDEX
CASE ID
AR
SUFFIX
RECON
DATE BOARDED
20080214
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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