IN THE CASE OF:	  

		BOARD DATE:	      28  July 2009

		DOCKET NUMBER:  AR20090004225 


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 14 August 1990 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his proper rank and pay grade and to add earned awards. 

2.  The applicant states, in effect, he served as a sergeant (SGT)/E-5 for 
1 year prior to his separation and he earned the Army Commendation Medal (ARCOM) and Army Achievement Medal (AAM), which should be reflected on his DD Form 214.

3.  The applicant provides no documentary evidence with 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 (RA) and entered active duty on 12 November 1986, and was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).  

3.  The applicant's record is void of a DA Form 2-1 (Personnel Qualification Record (PQR)) from his active duty period.  A DA Form 2-1 prepared upon his entry into the U.S. Army Reserve (USAR) in February 1991 contains pencil entries in item 18 (Appointments and Reductions) that show he was promoted to specialist (SPC)/E-4 on 1 May 1988 and to SGT on 2 January 1990.  It is unclear when these entries were made and his Official Military Personnel File (OMPF) is void of promotion orders corroborating these entries.  Item 9 (Awards, Decorations & Campaigns) of this DA Form 2-1 is blank and his OMPF is also void of any orders or other documents that indicate he was ever recommended for or awarded the ARCOM or AAM during his active duty tenure. 

4.  The applicant's OMPF does contain Headquarters, 82nd Airborne Division, Fort Bragg, North Carolina, Orders 11-27, dated 13 June 1990, which directed the applicant's reassignment to the Fort Bragg transition point on 2 July 1990, and his release from active duty on 14 August 1990.  These separation orders listed the applicant's rank as SPC.

5.  On 14 August 1990, the applicant was honorably REFRAD under the 1990 Early Transition Program and transferred to the USAR Control Group (Reinforcement) to complete his remaining Reserve obligation.  The DD Form 214 he was issued listed his rank as SPC in item 4a (Grade, Rate or Rank) and his pay grade as E-4 in item 4b (Pay Grade).  Item 12h (Effective Date of Pay Grade) lists his date of rank as 1 May 1988.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows he earned the following awards during his active duty tenure:  Army Service Ribbon, Army Lapel Button, Expert Marksmanship Qualification Badge with Rifle and Grenade Bars, Parachutist Badge, Noncommissioned Officer Professional Development Ribbon, and Expert Infantryman Badge.  The ARCOM and AAM are not included in the list of earned awards in item 13.  

6.  On 31 January 1991, while a member of the USAR, the applicant was ordered to active duty for the purpose of mobilization, in the rank of SPC.  A DD Form 93 (Record of Emergency Data) he completed on 3 February 1991, during his mobilization processing, contains his signature which includes his pay grade and rank in item 14 (Signature of Service Member (include rank, rate, grade)).  In this signature entry, the applicant listed his pay grade and rank as E-4/SPC.  


7.  The applicant served on active duty for 13 days until 12 February 1991, at which time he was honorably discharged under the provisions of chapter 5, 
Army Regulation 635-200 and Desert Storm Message, by direction of the Secretary of the Army based on his failure to meet medical accession standards.

8.  The DD Form 214 the applicant was issued in conjunction with his
12 February 1991 discharge lists his rank and pay grade as SP4 (sic)/E-4 in items 4a and 4b, and item 13 does not include the ARCOM and AAM.  

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.  Chapter 2 contains DD Form 214 preparation instructions and the instructions in effect at the time of the applicant's separation stated that the PQR and all documents on file in the OMPF would be used as the source for DD Form 214 entries.  The instructions for items 4a and 4b state to enter the active duty rank and pay grade held on the date of separation.  The instructions for item 13 stated to list all awards and decorations for all periods of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his 14 August 1990 DD Form 214 should list his rank and pay grade as SGT/E-5 because he held that grade for 1 year prior to his separation and that it should include the ARCOM and AAM in the list of awards contained in item 13 were carefully considered.  However, there is insufficient evidence to support this claim.

2.  Notwithstanding the pencil entry in item 18 of the DA Form 2-1 prepared on the applicant in February 1991, there are no other record entries and no orders or documents on file in his OMPF that indicate the applicant was ever promoted to or held the rank and pay grade of SGT/E-5 while he served on active duty.  

3.  The applicant's OMPF contains separation orders and a DD Form 214 issued to him in conjunction with his 14 August 1990 REFRAD, which confirm he held the rank and pay grade of SPC/E-4.  His OMPF also contains documents that confirm the applicant was ordered to active duty for the purpose of mobilization on 31 January 1991 and that show he held the rank and pay grade of SPC/E-4 at the time of his mobilization.  It further contains a DD Form 93 the applicant completed in February 1991, during mobilization processing, in which he listed his pay grade and rank as E-4/SPC the signature block.  

4.  Finally, the discharge orders published on the applicant on 10 February 1991, and the DD Form 214 issued to him upon his discharge on 12 February 1991, both confirm he held the rank E-4 on that date.  The applicant has failed to provide any supporting documents (promotion orders, leave and earnings statements, etc.) that show he was promoted to or held the rank and pay of SGT/E-5 while serving on active duty or at any time during his military service.  As a result, there is an insufficient evidentiary basis to support changing the rank and pay grade entries on his DD Forms 214 at this late date.  

5.  The applicant's contention that item 13 of his DD Form 214 should include
the ARCOM and AAM was also carefully considered.  However, his OMPF is void of any orders or other documents that indicate he was ever recommended for or awarded the ARCOM or AAM during his active duty tenure, and he 
has failed to provide any orders or documents that indicate he was ever recommended for or awarded the ARCOM or AAM by proper authority during his active duty tenure, or at any other time during his military service.  As a result, there is also insufficient evidence to support this claim.  

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)                                         AR20090004225



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ABCMR Record of Proceedings (cont)                                         AR20090004225



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