IN THE CASE OF:	  

		BOARD DATE:	  7 October 2008

		DOCKET NUMBER:  AR20080010111 


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 her DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to show her correct rank and pay grade.

2.  The applicant states, in effect, that her DD Form 214 shows she was an E-4; however, she became an E-5 on 27 February 1977.

3.  In support of her request, the applicant provides a copy of her DD Form 214 and Section VII (Current and Previous Assignments), from her 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 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 enlisted in the US Army Reserve on 30 June 1975.  The applicant’s records shows she enlisted in the Regular Army on 14 October 1975. She completed basic training at Fort McClellan, Alabama, and her advanced individual training at Fort Jackson, South Carolina.  After completing all required training, she was awarded military occupational specialty (MOS), 75D (Personnel Records Specialist).

3.  The applicant was honorably released from active duty, on 13 October 1979, under the provisions of Army Regulation 635-200, chapter 2, at the completion of required service.  She was separated in the rank and pay grade of Specialist Four (SP4)/E-4.  On the date she was released from active duty, she had completed 4 years active military service, with no time lost.

4.  Item 4a (Grade, Rate or Rank) and Item 4b (Pay Grade), of the applicant's DD Form 214, show the entries, “SP4” and “E-4,” respectively.

5.  Item 18 (Appointments and Reductions), of the applicant's DA Form 2-1, shows she was promoted to the rank and pay grade SP4)/E-4, on 19 January 1977.  The applicant was promoted to this rank and pay grade, with a date of rank and effective date of 19 January 1977, by Orders 6-7, Headquarters, Sierra Army Depot, Herlong, California, dated 19 January 1977.  There are no orders, and the applicant provided none to show she was promoted to the rank and pay grade, Specialist Five (SP5)/E-5, at any time while she served on active duty.

6.  On 3 July 1978, the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to her appointed place of duty on 23 June 1978.  The imposed punishment included a reduction to Private First Class (PFC)/E-3 (suspended for 60 days).  On 4 August 1978, the suspension of the punishment of reduction to PFC was vacated.  On 31 August 1978, the vacation of the punishment of reduction to PFC was set aside and all rights, privileges, and property affected were restored by her unit commander.

7.  On 25 June 1979, the applicant received nonjudicial punishment under the provisions of Article 15 of the UCMJ for absenting herself from her place of duty at 1315 hours, 6 June 1979 and remaining so absent until about 1500 hours on 6 June 1979 and for being disrespectful in language towards a superior noncommissioned officer on 31 May 1979.  The imposed punishment included a reduction to PFC.  The applicant appealed the reduction and on 5 July 1979, the reduction was suspended for a period of 60 days.

8.  Army Regulation 635-5 prescribes policies and procedures regarding separation documents.  This regulation prescribes that the grade, rate or rank, held by an individual at the time of their separation, will be entered in item 4a of the DD Form 214.  The individual's pay grade will be entered in item 4b of the DD Form 214 in accordance with Table 2-1, DD Form 214 Preparation Instructions, which is found in this regulation.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, 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.

2.  The evidence shows that the applicant was release from active duty in the rank of SP4/pay grade E-4, on 13 October 1979.

3.  The evidence shows the highest rank and pay grade the applicant attained while serving on active duty was SP4.

4.  The available evidence also shows that the applicant received nonjudicial punishment while serving in the rank and pay grade, SP4/E-4.  The imposed punishment included a reduction to PFC (suspended for 60 days).  The reduction was vacated; but, the vacation of the punishment to reduction to PFC was later set aside and all rights, privileges, and property affected were restored to her by her unit commander.

5.  The evidence further shows that the applicant received additional nonjudicial punishment and the imposed punishment also included a reduction to PFC.  The applicant successfully appealed the reduction.  Her rank and pay grade of SP4/E-4, was restored; however, the reduction was suspended for a period of 60 days

6.  There are no orders, and the applicant provided none to show she was promoted to the rank and pay grade, SP5/E-5, at any time while she served on active duty.

7.  The evidence shows that on the date the applicant was released from active duty, she was serving in the rank and pay grade, SP4/E-4.  Based on the evidence, the applicant is not entitled to a correction of her DD Form 214, items 4a and 4b to show she was promoted and was serving in a higher rank or pay grade than is shown.

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.



      __________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)                                         AR20080010111



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ABCMR Record of Proceedings (cont)                                         AR20080010111



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