IN THE CASE OF:	  

		BOARD DATE:	        21 October 2008

		DOCKET NUMBER:  AR20080013457 


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 his records to show he was separated in the rank/grade of private first class (PFC)/E-3 instead of private (PV2)/E-2 and that he completed his General Equivalency Diploma (GED).

2.  The applicant states that he completed his GED during his military service and that he was separated as a PFC/E-3.

3.  The applicant did not provide any additional documentary evidence 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 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 Delayed Entry Program (DEP) for 6 years on 6 April 1977.  On 9 May 1977, he was discharged from the DEP and enlisted in the Regular Army (RA) for 3 years on 10 May 1977.  His rank upon enlistment in the RA was private (PV1)/E-1).

3.  Upon enlistment in the RA, the applicant completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  He was subsequently assigned to Company C, 1st Battalion, 9th Infantry, 1st Infantry Division, Korea, on 21 September 1977, and was advanced to PV2 on 10 November 1977.

4.  Item 17 (Civilian Education and Military School) of the applicant’s DA Form   2-1 (Personnel Qualification Record) shows the entry “Broughton HS, Gen, 2 yr, no, 75,” indicating that the applicant attended Broughton High School for a period of 2 years as of 1975, but did not graduate.  The next entry shows “State Depart of Edu, GED, YES, 77,” indicating that the applicant completed his GED through a State Department of Education in 1977.

5.  The applicant's records contain a certificate, dated 11 August 1977, that shows he completed the equivalent of four years of standard high school work and was awarded a high school equivalency diploma. 

6.  On 7 March 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty, on or about 15 February 1978.  His punishment consisted of forfeiture of $94.00, reduction to PV1 (suspended for 30 days), 14 days of restriction, and 14 days of extra duty.

7.  On 3 April 1978, the suspension of punishment of reduction to PV1 imposed against the applicant on 7 March 1978 was vacated and the unexecuted portion of the punishment was ordered executed.

8.  On 23 October 1978, the applicant was reassigned to Company A, 2nd Battalion, 1st Infantry, Fort Lewis, Washington, and was subsequently promoted to PV2 on 1 March 1979.

9.  On 28 September 1979, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for twice failing to go at the prescribed time to his appointed place of duty, on or about 24 September 1979 and 27 September 1979.  His punishment consisted of reduction to PV1 (suspended for 90 days), forfeiture of $97.00 pay, and 7 days of correctional custody.

10.  On 20 December 1979, the suspension of punishment of reduction to        PV1 imposed against the applicant on 28 September 1979 was vacated and the unexecuted portion of the punishment was ordered executed.

11.  On 17 March 1980, the applicant was advanced to PV2.

12.  The applicant’s records show he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 9 May 1980 for completion of required service.

13.  Item 4a (Grade, Rate or Rank) and Item 4b (Pay Grade) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 May 1980 show the entries PV2 and E-2 respectively.  Additionally, Item 16 (High School Graduate or Equivalent) of this form shows the “No” block is checked.  

14.  There is no indication in the applicant’s records that he was advanced beyond the rank/grade of PV2/E-2 during his active military service.

15.  Item 18 (Appointments and Reductions) of the applicant’s DA Form 2-1 shows the applicant’s ranks and dates of rank as follows:  PVT/E-1, 9 May 1977; PV2/E-2, 10 November 1977; PVT/E-1, 7 March 1978; PV2/E-2, 1 March 1979; PVT/E-1, 28 September 1979; and PV2/E-2, 17 March 1980.  Additionally, Item 18 contains an entry for PFC/E-3, 21 February 1983, and a second entry for PV2/E-2, 17 March 1980; however, both entries pertain to his service in the Army National Guard, and are outside the period covered by the DD Form 214. 

16.  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 also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The active duty grade or rank and pay grade at the time of separation is entered in Item 4 and the effective date of promotion to the current pay grade (from the most recent promotion or reduction order) is entered in Item 12h.  Additionally, the “Yes” block is checked in Item 16 if a Soldier completed his/her GED during their military service.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the applicant’s civilian education, the evidence of record shows that the applicant completed his GED in August 1977, during his military service; however, his DD Form 214 indicates that he is not a High School graduate or equivalent.  Therefore, he is entitled to correction of his records to show he completed his GED during his military service.

2.  With respect to the applicant’s rank/grade, the evidence of record shows that the applicant was advanced to PV2/E-2 and demoted to PVT/E-1 on several occasions; however, he never held a rank/grade higher than that of PV2/E-2 during the period covered by the DD Form 214.  His rank/grade at the time of separation was PV2/E-2 and is correctly shown on his records.  Therefore, he is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X_____  __X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by placing a check mark in the "Yes" block of Item 16 of the applicant's DD Form 214.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the rank/grade of PFC/E-3.


															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)                                         AR20080013457



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ABCMR Record of Proceedings (cont)                                         AR20080013457


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