IN THE CASE OF:	

		BOARD DATE:	  24 September 2008

		DOCKET NUMBER:  AR20080011562 


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 an upgrade of her rank from specialist four (SP4)/E-4 to first lieutenant (1LT)/O-2.

2.  The applicant states that she attended the Officer Candidate School (OCS) and the Basic Leadership Course at Fort Hood, Texas, and the Reserve Officer Training Corps (ROTC) training at the Hampton Institute, Norfolk, Virginia.

3.  The applicant provided a copy of her DD Form 214 (Report of Separation from Active Duty), dated 14 March 1977, a copy of the Hampton Institute academic transcripts, dated 29 August 1978, and a copy of Thomas Nelson Community College academic transcripts, dated 13 October 1983, 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 she enlisted in the Regular Army for a period of 3 years on 27 January 1975.  She completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71D (Legal Clerk).  The highest rank/grade she attained during her military service was specialist four (SP4)/E-4.

3.  On 13 December 1976, the applicant’s immediate commander notified her of his intent to recommend her discharge from the Army in accordance with chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations), by reason of fraudulent entry-concealment of a conviction by civil court.  However, the applicant refused to sign or acknowledge the notification.

4.  On 13 December 1976, the applicant’s immediate commander initiated elimination action against the applicant in accordance with chapter 14 of AR  635-200 for fraudulent enlistment.  The applicant falsely stated on her DD Form 4 (Enlistment Contract-Armed Forces of the United States) that she was never convicted of any offenses or was arrested, cited, charged, or held in Federal, State, County, or any other law enforcement authorities for violation of the law or regulation.  However, a Federal Bureau of Investigation (FBI) report showed that she was arrested for “shoplifting” on 25 February 1970 in Hampton, Virginia.  

5.  On an unknown date in 1977, the applicant’s battalion commander recommended approval of the applicant’s elimination.  He further remarked that the applicant had not exhibited strong potential for meritorious service throughout her tenure with the organization.  Her performance was marred by a bad check, failure to report for duty, and marginal performance in her MOS.  The discovery of a concealment of a crime made during enlistment pre-induction was an additional justification for her release from the Army.

6.  On 27 January 1977, the applicant’s brigade commander recommended approval of the applicant’s separation for fraudulent entry.

7.  On 4 February 1977 (erroneously shown as 4 January 1977), the separation authority approved the applicant’s elimination from the Army for fraudulent entry. The applicant was accordingly discharged on 14 March 1977.  

8.  Item 6a (Grade, Rate or Rank) and Item 4b (Pay Grade) of the applicant’s 
DD Form 214 show the entries SP4 and E-4.  

9.  Item 17 (Civilian Education and Military Schools) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows she completed the one-week Basic Leadership Course at the 6th Air Cavalry Combat Brigade (ACCB), Fort Hood, Texas, in 1976.

10.  The applicant submitted two sets of academic transcripts as follows:

	a.  Hampton Institute, Hampton, Virginia, transcripts dated 29 August 1978, showing she completed 28 credit hours, towards a degree in management; and 

	b.  Thomas Nelson Community College, Hampton, Virginia, transcripts dated 13 October 1983, showing she was awarded credit towards an automotive curriculum.

11.  There is no indication in the applicant’s records that she applied for OCS or that she was accepted by the Accessions Branch that conducts four OCS Selection and Branching Boards per year.  Additionally, there is no indication in her records that she completed the non-waivable 90 semester hours of college education, attended OCS training, or received a commission.

12.  There is no indication in the applicant’s records that she was commissioned or that she was accepted into the ROTC program.

13.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It is prepared for all personnel at the time of their retirement, discharge, or release from active duty.  In the version in effect at the time, Items 6a and 6b showed the rank/grade in which the Soldier was serving in at the time of separation.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the highest rank the applicant attained during her military service was SP4/E-4.  There is no evidence in the available records nor did the applicant provide documentation to substantiate the rank of first lieutenant.  Furthermore, there is no evidence that shows she was appointed as a commissioned officer in any rank/grade or that she applied for or was accepted into an officer training program that would lead to a commission.

2.  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 did not submit evidence that would satisfy that requirement.  Therefore, the applicant is not entitled to relief. 

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)                                         AR20080011562



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ABCMR Record of Proceedings (cont)                                         AR20080011562



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