IN THE CASE OF:	

		BOARD DATE:	  12 March 2009

		DOCKET NUMBER:  AR20080015142


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 his effective date of pay grade on his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 31 July 1995 be changed to show 5 May 1985 instead of 
21 June 1985.  He also requests that his awards of the Air Assault Badge and a second Army Commendation Medal be added to his DD Form 214.

2.  The applicant states he wants his effective date of pay grade corrected and that he receive any back pay and allowances that may be due as a result.  He also states the Air Assault Badge and a second Army Commendation Medal were not included on his DD Form 214.

3.  The applicant provides, in support of his application, copies of his promotion orders to staff sergeant, a DA Form 638 (Recommendation for Award of Legion of Merit and Below), his orders for the award of the Air Assault Badge, his 
DD Form 214, and a letter from the National Personnel Records Center.

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 military personnel records show he enlisted in the Regular Army on 29 June 1977.  He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).

3.  On 1 November 1984, the applicant was assigned to Headquarters and Service Company, 224th Military Intelligence Battalion, Hunter Army Air Field, GA.

4.  Headquarters, 24th Infantry Division (Mechanized) and Fort Stewart, Fort Stewart, GA Orders 120-43, dated 21 June 1985, promoted the applicant to staff sergeant (SSG)/pay grade E-6.  The promotion was effective 21 June 1985 with a date of rank of 5 May 1985.  Additional instructions in these orders advised the applicant to submit a DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10 U.S. Code, Section 1552) to the ABCMR for correction of his effective date and for collection of all back pay and allowances that may be due.  These instructions stated the promotion should have been effective 1 June 1985.

5.  On 1 June 1990, the applicant was assigned to Headquarters and Headquarters Company, 3rd Battalion, 9th Infantry Regiment at Fort Ord, CA.

6.  A DA Form 638, dated 19 July 1990, documents the applicant's award of the Army Commendation Medal for meritorious achievement during the period from 14 May to 11 August 1990.  The applicant's award was approved by the Commander, 9th Infantry Regiment and 7th Infantry Division Permanent Orders 152-104 were issued on 13 August 1990.

7.  Headquarters, 7th Infantry Division (Light), Fort Ord, Permanent Orders
195-81, dated 16 October 1992, awarded the applicant the Air Assault Badge.

8.  The applicant's Military Personnel Records Jacket (MPRJ) contains a certificate awarding him the Army Commendation Medal for meritorious achievement from 10 December 1992 to 31 March 1993.   The certificate indicates the Army Commendation Medal was awarded by Headquarters,
9th Infantry Regiment Permanent Order 5-6, dated 18 May 1993.

9.  On 31 July 1995, the applicant was released from active duty by reason of voluntary early retirement.  He had completed 18 years, 1 month, and 2 days of total active service that was characterized as honorable.  He had reenlisted on
24 October 1979, 14 September 1982, 17 June 1985, and 30 October 1990.

10.  Item 4b (Pay Grade) of the applicant's DD Form 214 contains the entry "E6."  Item 12h (Effective Date of Pay Grade) of his DD Form 214 contains the entry 
"1985 06 21" (1985 June 21).  Item 13 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows, among other awards, the applicant was awarded one Army Commendation Medal.  Item 13 does not show he was awarded the Air Assault Badge.

11.  In the processing of this case, an advisory opinion, dated 4 December 2008, was provided by the U.S. Army Human Resources Command, St Louis, MO (HRC-STL).  HRC-STL stated that item 12h on the applicant's DD Form 214 should be 1985 05 05 (1985 May 05).  On 27 January 2009, the applicant concurred with the HRC-STL opinion.

12.  Army Regulations 600-200 (Enlisted Personnel Management System), chapter 7 of the regulation then in effect, provided that the effective date of promotion for grades E-5 and E-6 was the first calendar day of the month the Soldier was eligible and authorized.  This regulation also provided that the date of rank (DOR) would be based on total promotion points and would be spread over the days of the month preceding the subject month of the letter that authorized the promotion.

13.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation provided, in pertinent part, that an individual's effective date of promotion to his pay grade at separation be entered in item 12h of his 
DD Form 214.

14.  Army Regulation 15-185 (ABCMR) 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 Department of the Army announcement of point cutoff scores and the applicant's total promotion points were not available for review.  

2.  The applicant was promoted effective 21 June 1985.  However, his orders indicated his effective promotion date should have been 1 June 1985 and advised him to file an application with the ABCMR for correction of his effective date and back pay and allowances.  The regulation, in effect at the time, provided that promotions to grade E-6 would be the first calendar day of the month the Soldier is eligible for promotion.  Therefore, notwithstanding the opinion provided by HRC-STL, the applicant's correct effective date of promotion to staff sergeant 
was 1 June 1985 and it is appropriate to correct item 12h of his DD Form 214 to read 1985 06 01 instead of 1985 06 21.

3.  The applicant's promotion points were not available.  Therefore, the applicant's DOR of 5 May 1985 is presumed to be correct.

4.  The applicant's records clearly show that he was awarded two Army Commendation Medals during his Army career.  Therefore, it is appropriate to amend item 13 of his DD Form 214 to include the entry "Army Commendation Medal (2nd award)."

5.  The applicant was awarded the Air Assault Badge.  Therefore, it is appropriate to include this award in item 13 of his DD Form 214.

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:

   
   a.  changing his effective date of promotion to staff sergeant/pay grade E-6 to 
1 June 1985 instead of 21 June 1985;
   
   b.  correcting item 12h of his DD Form 214 to read 1985 06 01 instead of 1985 06 21;

   c.  deleting from item 13 of his DD Form 214 the entry, Army Commendation Medal; and
   
   d.  adding to item 13 of his DD Form 214 the Army Commendation Medal (2nd award) and the Air Assault Badge.

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 providing for an effective date of pay grade earlier that 1 June 1985.

3.  Additionally, the Defense Finance and Accounting Service (DFAS) should audit the applicant's pay records and provide the applicant any pay and allowances due him based on the above corrections.




      ___________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)                                         AR20080018649



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ABCMR Record of Proceedings (cont)                                         AR20080015142



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