IN THE CASE OF:
BOARD DATE: 5 February 2009
DOCKET NUMBER: AR20080013615
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 that the rank and pay grade on her DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of
2 April 1983 be changed to specialist four (SP4)/pay grade E-4 instead of private first class (PFC)/pay grade E-3.
2. The applicant states she was never demoted and she never accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).
3. The applicant provides a copy of her DD Form 214 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 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. When the applicant's Military Personnel Records Jacket (MPRJ) was received from the National Personnel Records Center, St. Louis, Missouri it contained only three documents from the applicant's period of active service. The remaining documents reflect her service in the U.S. Army Reserve (USAR).
3. The applicant's DD Form 214 shows she entered active duty on 3 April 1979.
4. Headquarters, Fort Sam Houston, Fort Sam Houston, Texas Permanent Orders 54-2, dated 12 April 1982, awarded the applicant the Army Good Conduct Medal for the period from 3 April 1979 to 2 April 1982.
5. A copy of the applicant's DA Form 2-1 (Personnel Qualification Record) shows, in item 18 (Appointments and Reductions), that the applicant was promoted to PFC effective 1 May 1980 and to SP4 effective 1 August 1981. She was reduced to PFC effective 29 December 1982.
6. On 2 April 1983, the applicant was released from active duty by reason of expiration term of service. She had completed 4 years of active service that was characterized as honorable.
7. Item 4a (Grade, Rate or Rank) of the applicant's DD Form 214 shows her grade as a PFC. Item 4b (Pay Grade) shows her pay grade as E-3. Item 12h (Effective Date of Pay Grade) shows her date of rank as 29 December 1982.
8. The applicant enlisted in the USAR on 11 February 1985 in pay grade E-4 and was discharged from the USAR on 23 March 1987 in the grade of SP4.
9. Army Regulation 635-5 (Separations Documents), then in effect, provided, in pertinent part, that the DA Form 2-1 (Personnel Qualification Record) was among those source documents to be used when preparing the DD Form 214.
10. Army Regulation 635-5, then in effect, established the standardized policy for preparing and distributing the DD Form 214. This regulation, in pertinent part, stated that the active duty grade or rank and pay grade at the time of separation will be entered in Items 4a and 4b and the effective date of pay grade in item 12h of the DD Form 214.
11. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant's complete record of active service was not available for review. The only source document available that would have been used in preparing the applicant's DD Form 214 was her DA Form 2-1. The entries in item 18 of
the DA Form 2-1, showing her reduction to PFC effective 29 December 1982, confirm the entries contained in items 4a, 4b, and 12h of her DD Form 214.
2. Without evidence to the contrary, the entries in items 4a, 4b, and 12h of the applicant's DD Form 214 are presumed to be correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
3. 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 that requirement.
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) AR20080013615
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