IN THE CASE OF:	  

		BOARD DATE:	       25 JUNE 2009

		DOCKET NUMBER:  AR20090003136 


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 his award of the Army Commendation Medal be added to his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 June 1987.  He also requests his rank on his DD Form 214 be corrected to sergeant/pay grade E-5.

2.  The applicant states he received the Army Commendation Medal.  He states he remembers being promoted to sergeant around May 1987 just prior to out processing.  

3.  The applicant provides, in support of his application, copies of orders for the award of the Army Commendation Medal, a certificate for the award of the Army Commendation Medal, and his DD Form 214.

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 1 September 1983 for a period of 4 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 19K (M1 Armor Crewman).

3.  Headquarters, 2nd Armored Division, Fort Hood, TX Permanent Orders 57-16, dated 7 April 1987, awarded the applicant the Army Commendation Medal for meritorious achievement on 9 and 10 March 1987.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in 
item 18 (Appointments and Reductions), that he was promoted to specialist four/pay grade E-4 effective 1 November 1985.  There is no entry showing the applicant was promoted to sergeant.

5.  There are no orders in the applicant's Military Personnel Records Jacket (MPRJ) promoting him to sergeant.

6.  On 30 June 1987, the applicant was released from active duty by reason of reduction in authorized strength - FY87 Early transition program.  He had completed 3 years and 10 months of active service that was characterized as honorable.

7.  Item 4a (Grade, Rate or Rank) of the applicant's DD Form 214 shows his grade as SP4 (specialist four).  Item 4b (Pay Grade) shows his pay grade as E4.  Item 12h (Effective Date of Pay Grade) shows his date of rank as 85 11 01 (1985 November 01).

8.  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.

9.  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.

10.  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 was awarded the Army Commendation Medal on 7 April 1987.  Therefore, it is appropriate to include this award in item 13 of his DD Form 214.

2.  There were no orders in the applicant's MPRJ promoting him to sergeant.  The only source document available that would have been used in preparing the his DD Form 214 was his DA Form 2-1.  The entries in item 18 of 
the DA Form 2-1, showing his rank at the time of his separation, confirm the entries contained in items 4a, 4b, and 12h of his DD Form 214.

3.  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.

4.  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 in reference to changing his rank to sergeant.

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 amending item 13 of his DD Form 214 to include the Army Commendation Medal.

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 changing his rank to sergeant on his DD Form 214.  




      _______ _   _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)                                         AR20090003136





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ABCMR Record of Proceedings (cont)                                         AR20090003136



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