IN THE CASE OF:
BOARD DATE: 16 DECEMBER 2008
DOCKET NUMBER: AR20080015232
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 rank and pay grade on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect that he was a corporal (CPL)/E-4 with a date of rank (DOR) of 1 September 1999.
2. The applicant states, in effect, that his DD Form 214 incorrectly reflects his rank and pay grade as a private first class/E-3 and should reflect that he was serving as a CPL/E-4.
3. The applicant provides a copy of a DA Form 4187 (Personnel Action) that advances him to the rank of specialist (SPC) E-4 effective 1 September 1999.
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. The applicant enlisted in the Regular Army on 11 September 1997 for a period of 4 years and training as a firefighter. He was advanced to the pay grade of E-4 on 1 September 1999 and continued to serve until 10 September 2001 when he was honorably released from active duty (REFRAD) due to completion of required service and was transferred to the United States Army Reserve Control Group (Reinforcement).
3. On 20 June 2002, he again enlisted in the Regular Army in the pay grade of E-4 for a period of 3 years and remained on active duty until he was honorably discharged in the pay grade of E-3 on 23 September 2003 due to disability with severance pay. His DD Form 214 issued at the time of his discharge shows that his rank and pay grade were PFC/E-3 and his DOR was 20 December 2002.
4. The applicant's discharge orders also show that his rank was that of a PFC; however, the additional instructions on those orders direct that he be paid severance pay at the rate of an SPC based on 5 years, 4 months, and 4 days of service.
5. A review of the available records fails to show that the applicant was ever appointed to the rank of CPL. The available records also do not contain a reduction instrument reducing him to the pay grade of E-3 on 20 December 2002.
6. Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) provides, in pertinent part, that an enlisted Soldier being processed for physical disability separation or disability retirement, not currently serving in the highest grade served, will be referred to the AGDRB for a grade determination unless the Soldier is entitled to a higher or equal grade by operation of law.
DISCUSSION AND CONCLUSIONS:
1. While it cannot be determined with any degree of certainty what happened in the applicant's case based on the limited availability of records, it appears that the applicant was reduced in grade to the pay grade of E-3 on 20 December 2002 as a result of disciplinary action being imposed against him.
2. However, once he was processed for disability, a grade determination was made which determined that he should be paid severance pay at the highest grade in which he had served, the pay grade of E-4. Accordingly, he was discharged in the pay grade of E-3 and paid severance pay at the pay rate of an E-4.
3. The available records also do not contain any evidence to show that he was ever appointed to the rank of CPL.
4. Therefore, in the absence of evidence to show that he was in fact serving in the rank and pay grade of CPL/E-4 at the time of his discharge, there appears to be no basis to grant his request.
5. 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 this 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.
_________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) AR20080015232
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ABCMR Record of Proceedings (cont) AR20080015232
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