IN THE CASE OF:	  

		BOARD DATE:	        21 August 2008

		DOCKET NUMBER:  AR20080007930 


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 correction of her date of rank (DOR) from private (PVT)/E-1 to private (PV2)/E-2 from 1 April 2002 to 21 December 2001.

2.  The applicant states that her DOR was not set in accordance with law and regulation. 

3.  The applicant provides a copy of her DA Forms 4187 (Personnel Action), dated 11 March 2002, for promotion to PV2/E-2, and 18 June 2002, for promotion to private first class (PFC)/E-3, and an extract of her automated personnel record, in support of her 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 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 applicant's records show that she enlisted in the U.S. Army Reserve (USAR) on 13 September 2000 for a period of 8 years under the Delayed Entry Program (DEP), in the rank/grade of PV2/E-2.  She subsequently enlisted in the Regular Army for a period of 4 years, in the rank/grade of PFC/E-3 on 2 November 2000.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31F (Network Systems Operator).  

3.  On 22 August 2001, Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia, published permanent orders 234-451, awarding the applicant the Parachutist Badge.  The standard name line on the applicant's permanent orders shows the entry "PFC."

4.  On 27 September 2001, the applicant was assigned to A Company, 82nd Signal Battalion, Fort Bragg, North Carolina.  

5.  The applicant's records also show she was counseled on 24 October 2001, 6 November 2001, and 5 December 2001, by her section chief and squad leader for miscellaneous infractions.  Her rank is shown as PFC on each of these counseling forms. 

6.  The facts and circumstances of the applicant's reduction from PFC/E-3 to PVT/E-1, is not available for review with this case, but it appears that the applicant was reduced to PVT/E-1, effective 21 June 2001.

7.  On 11 March 2002, the applicant's battalion commander initiated a DA Form 4187 recommending the applicant's promotion from PVT/E-1 to PV2/E-2, effective 1 April 2002.

8.  On 18 June 2002, the applicant's immediate commander approved the applicant's promotion to PFC/E-3, effective 1 July 2002.

9.  On 7 October 2002, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for disrespecting a superior noncommissioned officer.  Her punishment consisted of reduction to PV2/E-2, forfeiture of $177.00 pay for one month (suspended until 7 January 2003),
14 days of restriction, and 14 days of extra duty.  Although she appealed her punishment, her appeal was denied on 24 October 2002 by the next superior authority.

10.  On 11 July 2003, the applicant's immediate commander initiated separation action against the applicant for a pattern of misconduct, including one incident of driving a motor vehicle under the influence of alcohol (DUI).  
11.  On 24 July 2003, the separation authority approved the applicant's discharge and she was accordingly discharged on 8 August 2003, in the rank of PVT/E-1.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  It states in pertinent part that the Automated Enlisted Advancement Report (Active Army) or, for USAR, DA Form 4187 or Standard Installation/Division Personnel System (SIDPERS) Army Reserve Advancement Eligibility Status Roster (GRA–PO1) are the official instruments used by commanders to recommend Soldiers for promotion to SPC/E-4 and below.  When the commander denies promotion, he or she may promote the Soldier on the next automated Enlisted Advancement Report, provided the Soldier is otherwise qualified.  

13.  Promotions to PV2, PFC, and SPC will be made automatically by the Total Army Personnel database for posting to the automated personnel file and the master military pay file.  DA Form 4187 will not be used for automatic advancements.  The eligibility criteria for an automatic promotion to PV2 is 6 months time in service (TIS) and for PFC/E-3 is 12 months TIS.  If a unit commander elects not to recommend a Soldier for promotion on the automatic promotion date, then a DA Form 4187 denying the promotion will be submitted not later than the 20th day of the month preceding the month of automatic promotion.  The DA Form 4187 denying the promotion (in lieu of DA Form 268) will be used by the BN HR to initiate a FLAG transaction using code PA as the initial and reason code and input the transaction into the automated system.  This will stop an automatic promotion.  The FLAG must be closed using FLAG code PE not later than the second working day following the date the Soldier would have been automatically promoted.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant enlisted in the Regular Army on 2 November 2000 as a PFC/E-3.  She completed airborne training on 31 August 2001 and arrived at her unit on 27 September 2001 as a PFC/E-3.  The facts and circumstances surrounding her reduction to PVT/E-1 effective 21 June 2001 are not available for review with this case.

2.  The normal time in service requirements from PVT/E-1 to PV2/E-2 is 6 months, provided that the Soldier is eligible.  The DA Form 4187 is not used for automatic advancements.  In this case, however, having been reduced before and having completed over 18 months TIS by the time she was promoted to PV2/E-2, the 6 months TIS rule does not apply.

3.  The evidence of record shows that the applicant's battalion commander (not the company commander who is the normal promotion authority to PV2/E-2) recommended her for promotion to PV2/E-2 on 1 April 2002.  There is no evidence that she was qualified for promotion to PV2/E-2 (given her negative extensive counseling history) or that she was recommended for promotion to PV2/E-2 earlier than 1 April 2002.  Therefore, the applicant's 1 April 2002 DOR to PV2/E-2 is correct.

4.  The applicant's company commander approved the applicant's promotion to PFC/E-3, effective 1 July 2002.  There is no evidence that she was recommended for or promoted earlier than that date.  Therefore, her 1 July 2002 DOR to PFC/E-3 is also correct.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, the applicant is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															XXX
      ______________________
               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)                                         AR20080007930



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007930



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1