IN THE CASE OF:
BOARD DATE: 29 January 2009
DOCKET NUMBER: AR20090000069
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 her rank and pay grade on her 29 February 2004 DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to captain, O-3.
2. The applicant states her retirement orders specifically state that she was retired as a captain but that the Retirement Section refuses to acknowledge the orders.
3. The applicant provides copies of her 17 June 2003 retirement orders, DD Forms 214, dated, 1 March 1998 and 29 February 2004; Total Army Personnel Command, Order Number 134-34; and a Release from Active Duty memorandum.
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's iPERMS (integrated Personnel Electronic Records Management System) are incomplete. They do not contain complete information related to her earlier periods of service and commissioning.
3. The applicant enlisted on 7 June 1982 and served on active duty in an enlisted status until 28 March 1985.
4. The applicant was commissioned a second lieutenant in the Adjutant General's Corps on 29 March 1985. The specific documentation related to her commissioning is not of record.
5. In 1997 [date stamp not clear] the applicant was notified that she was not selected for promotion to major and would be released from active duty effective 1 March 1998.
6. The applicant's 1 March 1998 DD Form 214 shows she was released from active duty, as a captain, due to nonselection for permanent promotion.
7. On 2 March 1998, the applicant enlisted in the Regular Army as an E-6.
8. Total Army Personnel Command, Order Number 134-34, dated 14 May 2001, promoted the applicant to sergeant first class (E-7).
9. Headquarters, U.S. Army Field Artillery Center and Fort Sill, Oklahoma, Orders Number 168-0667, dated 17 June 2003, reassigned the applicant, as sergeant first class, to the Fort Sill Transition Point effective 29 February 2004. The orders state that she was to be "released from active duty and, on the date following, placed on the retied list." The effective date of separation is shown as 29 February 2004. Her retired rank is shown as captain.
10. The 29 February 2004 DD Form 214 lists the applicant rank and grade at the time of separation as sergeant first class, E-7.
11. Army Regulation 635-5 (Separation Documents) states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty (emphasis added). It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. It further states that the grade, rate or rank to be entered on the DD Form 214 is the active duty grade or rank and pay grade at time of separation [emphasis added].
DISCUSSION AND CONCLUSIONS:
1. The applicant served on active duty as officer and twice in an enlisted status.
2. Since the DD Form 214 is a record of her enlisted service between 2 March 1998 and 29 February 2004; it is not appropriate to correct the 29 February 2004 DD Form 214 to reflect her retired rank of captain.
3. Because she was in an enlisted status at the time of her final separation this is the appropriate rank to be listed on 29 February 2004 DD Form 214.
4. The applicant was placed on the Retired List as a captain effective the day after her last separation from active duty. This is the rank that should be shown on all documentation effective 1 March 2004 or later.
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.
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