IN THE CASE OF:	  

		BOARD DATE:	  19 March 2009

		DOCKET NUMBER:  AR20080017516 


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, in effect, that his record be corrected to show his proper rank.

2.  The applicant states, in effect, he requests that his rank be changed on all records.  He claims his Reserve service has not been updated on his record.   

3.  The applicant provides his United States Army Reserve (USAR) discharge certificate 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's record shows that he enlisted in the Regular Army and entered active duty on 14 February 1979, and was trained in and awarded military occupational specialty (MOS) 81E (Illustrator).  It further shows he was promoted to specialist four (SP4) on 12 July 1980, and that this is the highest rank he held while serving on active duty.

3.  The applicant's disciplinary history shows that during his active duty tenure, he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions.

4.  On 12 June 1980, the applicant accepted NJP for failing to obey a lawful order.  His punishment for this offense included a suspended reduction to private/E-2 (PV2).

5.  On 16 April 1982, the applicant accepted NJP for being absent without leave (AWOL) for 5 days and failing to go to his appointed place of duty at the prescribed time.  His punishment for these offenses included a suspended reduction to private first class (PFC).  

6.  On 29 July 1982, the applicant accepted NJP for two specifications of failing to go to his appointed place of duty at the time prescribed.  His punishment for this offense included a reduction to PFC.

7.  On 17 February 1983, the applicant was honorably released from active duty (REFRAD), in the rank of PFC, after completing 4 years of creditable active military service and accruing 5 days of lost time due to being AWOL.  Item 4a (Grade, Rate or Rank) shows he held the rank of PFC on the date of his REFRAD.  Item 12h (Effective Date of Pay Grade) was 29 July 1982.  

8.  The applicant's record also shows that subsequent to his REFRAD, the applicant served in the USAR in various statuses through 14 February 1995, at which time he was honorably discharged, in the rank of sergeant (SGT), as reflected in United States Army Reserve Personnel Center (ARPERCEN) Orders D-02-516586, dated 14 February 1995.  

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214. 


10.  Chapter 2 of the separation documents regulation contains guidance on preparation of the DD Form 214.  It states, in pertinent part, that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  There are no provisions that provide for correcting or reissuing a DD Form 214 to incorporate accomplishments or achievements completed as a member of a Reserve Component (RC) subsequent to the period of active duty service covered by the original 
DD Form 214.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that all of his records should be corrected to show his proper rank was carefully considered.  However, there is no evidence that his rank is incorrectly documented on any of his existing active duty or USAR records.  

2.  The applicant's records confirm he held the rank of PFC at the time of his REFRAD on 17 February 1983, and this is the rank properly reflected on the 
DD Form 214 he was issued upon his separation from active duty.  It further shows that he subsequently served in the USAR through 1995, and that his USAR discharge orders properly reflect his rank at that time, which was SGT.  As a result, there appears to be no error in the rank documented in his record.  

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 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.




      _______ 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)                                         AR20080017516



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ABCMR Record of Proceedings (cont)                                         AR20080017516



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