IN THE CASE OF:
BOARD DATE: 15 July 2008
DOCKET NUMBER: AR20080005291
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that Item 4a (Grade, Rate or Rank) of his separation document (DD Form 214) be corrected to show his rank as corporal (CPL).
2. The applicant states, in effect, that he was appointed a CPL prior to his release from active duty (REFRAD) and would like his DD Form 214 corrected accordingly.
3. The applicant provides a self-authored letter, DD Form 214, CPL appointment orders, letter of recommendation, and letter of appreciation in support of his application.
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 record shows that he enlisted in the Regular Army and entered active duty on 9 October 1984, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).
3. The applicant's Personnel Qualification Records (DA Forms 2 and 2-1) show he was promoted to specialist four (SP4) on 4 July 1985. The records also shows that he served in an authorized noncommissioned officer (NCO) position from 24 November 1986 through the date of his REFRAD, which was 9 October 1987.
4. The applicant's Official Military Personnel File (OMPF) contains Headquarters, 25th Infantry Division Order 265-61, dated 22 September 1987, which appointed the applicant a CPL, and terminated his specialist four (SP4) rank. The order confirms he retained the date of rank of 4 July 1985.
5. On 9 October 1987, the applicant was honorably REFRAD after completing
2 years, 11 months, and 29 days of active military service. Item 4a of the DD Form 214 issued to the applicant contains an entry indicating his rank was SP4.
6. Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time of the applicant's REFRAD, provided the Army's enlisted personnel management policy. Section X, Chapter 2, provided the policy for lateral appointments, and provided provisions for the lateral appointment of a specialist to an NCO in the same pay grade. It further stated, in pertinent part, that a Soldier who was appointed from SP4 to CPL would retain the rank to which laterally appointed unless it was removed for cause as an exception.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he was laterally appointed from SP4 to Cpl prior to his REFRAD and that Item 4a of his DD Form 214 should reflect the rank of CPL instead of SP4 was carefully considered and found to have merit.
2. The governing regulation in effect at the time of the applicant's separation provided for the lateral appointment of a SP4 to a CPL, and stipulated that Soldiers laterally appointed to CPL would retain that rank unless it was removed for cause as an exception. As a result, given the applicant's OMPF contains orders confirming he was laterally appointed from a SP4 to a CPL on 22 September 1987, prior to his REFRAD, it would be appropriate to correct his record and separation document accordingly.
BOARD VOTE:
___x____ ___x____ ___x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Item 4a of his DD Form 214 by deleting the current entry and replacing it with the entry "Corporal"; and by providing him a correction to his separation document that reflects this change.
_ _x______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080005291
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ABCMR Record of Proceedings (cont) AR20080005291
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