RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	 25 March 2008 
	DOCKET NUMBER:  AR20070018130 


	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.


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	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 his rank and pay grade be corrected on his DD Form 214, Certificate of Release or Discharge from Active Duty.

2.  The applicant states, in effect, that his duties were Assistant Section Chief, NBC (Nuclear, Biological, and Chemical) Noncommissioned Officer (NCO), and Arms Room NCO.  He worked in his pay grade from March 1982 to March 1983.

3.  The applicant adds that he was hurt in a field training exercise where he semi-amputated his fingers on his left hand after he completed the NCO Academy.  He was a gunner on the M109 Howitzer until he was hurt.  He was then placed as the NBC NCO and then the Arms Room NCO until he got out in 1983.

4.  In support of his request, the applicant provides a copy of his DD Form 214 and a copy of a Certificate of Graduation, from the 3rd Armored Division NCO Academy, Primary Leadership Development Course, dated 12 March 1982.

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The evidence of record shows the applicant enlisted in the US Army Reserve on 21 February 1979.  On 12 March 1979 he enlisted in the Regular Army for a period of 4 years.  He successfully completed one station unit training and was awarded the military occupational specialty 13B, Field Artillery Basic.

3.  Item 18 (Appointments and Reductions), of the applicant's DA Form 2-1, Personnel Qualification Record, Part II, shows he was promoted to the rank and pay grade Specialist Four, E-4, on 1 March 1981.  He served in this rank and pay 

grade until 12 March 1983 when he was honorably released from active duty at the expiration of his term of service.  On the date of the applicant's release from active duty, he had completed 4 years of active military service, with no time lost.

4.  Item 4a. (Grade, Rate or Rank) of the applicant's DD Form 214, contains the entry, "SP4."  Item 4b. (Pay Grade) contains the entry, "E4."

5.  The applicant's military personnel records were reviewed to determine if he was on a standing promotion list for promotion to the rank and pay grade of Sergeant, E-5.  A standing promotion list was not found.

6.  The applicant's military personnel records were reviewed to determine if promotion orders were published promoting the applicant to the rank and pay grade, Sergeant, E-5, prior to his release from active duty.  No promotion orders were found and the applicant provided none to support his contention he was serving in the rank of Sergeant, on the date of his release from active duty.

7.  The applicant's military personnel records were reviewed to determine if he had been promoted to a "temporary/acting" grade of rank.  No promotion orders were found.

8.  Item 35, of the applicant's DA Form 2-1, shows he was assigned as an RTO (Radio Telephone Operator) throughout the period of his assignment with Battery B, 2nd Battalion, 27th Field Artillery, in Germany.

9.  The Certificate of Graduation from the 3rd Armored Division NCO Academy, Primary Leadership Development Course the applicant provided in support of his request, identifies the applicant as a Sergeant.

10.  Army Regulation 635-5, in effect at the time of the applicant's release from active, established uniform administrative procedures and separation forms to be completed in connection with an individual's release from active duty or complete separation from military service.  Table 2-1, of this regulation, states that in Item 4a. and 4b., of the DD Form 214, "Enter active duty grade of rank and pay grade at time of separation."

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in 

error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The evidence shows the applicant was promoted to the rank and pay grade of Specialist Four, E-4, with a date of rank and effective date of 1 March 1981.

3.  The evidence shows the applicant served in this rank and pay grade until he was released from active duty at the expiration of his term of service.

4.  A search of the applicant's service personnel records failed to show that he was on a promotion standing list to the rank and pay grade of Sergeant E-5, that he was appointed to an "Acting NCO" rank to perform those duties that he contends he performed, or that he was promoted to this rank and pay grade prior to his release from active duty.

5.  It appears an administrative error was committed at the time the applicant's Certificate of Graduation, from the 3rd Armored Division NCO Academy, Primary Leadership Development Course, was completed.  The evidence shows he was serving in the rank and pay grade of Specialist Four, E-4, and not Sergeant, E-5.

6.  The applicant's contentions that he served as the Assistant Section Chief, NBC NCO, and Arms Room NCO are not supported by the evidence of record.  His personnel qualification record shows that throughout the time he was assigned to his field artillery unit in Germany, he performed the duties of RTO.

7.  Even if the applicant's contentions are true, a long standing custom of the service allows company, troop, battery, and separate detachment commanders to appoint qualified individual to perform duties in positions which require a greater grade of rank than the individual may have attained.  In this manner Soldiers can be evaluated and a full assessment of their leadership, managerial, and technical skills can be conducted.  Individuals who perform duties in a position having greater rank requirements are not compensated for their efforts monetarily.  The compensation that is derived comes from the satisfaction they get that their success will be recognized by their superiors, peers, and subordinates alike.

8.  Based on the evidence, the applicant is not entitled to a correction of his DD Form 214, items 4a. and 4b., to show the entries, "Sergeant" and "E-5," in these items, respectively.

9.  In view of the foregoing, there is no basis for granting the applicant's request. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING
x__  ___x___  ___x__  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.




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          CHAIRPERSON



INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.