IN THE CASE OF:
BOARD DATE: 5 November 2009
DOCKET NUMBER: AR20090009626
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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as specialist, pay grade E-4.
2. The applicant states that his DD Form 214 should reflect his rank as specialist.
3. The applicant provides, in support of his application, copies of his DD Form 214 and separation orders.
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. On 4 November 1999, the applicant enlisted in the Regular Army. He completed his initial training and was awarded military occupational specialty (MOS) 14S (Avenger Crewmember).
3. On 25 April 2000, the applicant was assigned duty at Fort Stewart, Georgia.
4. On 16 October 2002, the applicant was assigned to the 5th Air Defense Artillery Brigade in the Republic of Korea. On 2 July 2002, he was promoted to specialist, pay grade E-4.
5. In October 2002, the applicant returned to the United States. He was assigned as a patient to the Medical Holding Company, Fort Sam Huston, Texas.
6. A DA Form 2173 (Statement of Medical Examination and Duty Status), dated
5 May 2004, shows the applicant sustained an injury to his left ankle during training at Fort Stewart, Georgia on 24 October 2000. He also sustained an injury to the left ankle when he slipped out of the shower at Fort Sam Houston, Texas on 3 March 2003. This injury was considered to be in the line of duty.
7. A DA Form 199 (Physical Evaluation Board (PEB)) Proceedings), dated
10 June 2004, shows the applicant was evaluated by the PEB and he was found unfit for duty with a 20 percent disability rating. The PEB recommended that he be separated with severance pay.
8. Orders 259-0106, Fort Sam Houston, Texas, dated 15 September 2004, reassigned the applicant to the United States Army Transition Point for separation due to a medical disability. He was authorized disability severance pay based on the pay grade of E-4 and 4 years, and 11 months of service. His reporting date was 3 October 2004.
9. The applicant's DD Form 214 shows that he was discharged on 3 October 2004, due to a physical disability, with severance pay. His rank is shown as private, pay grade E-1. His date of rank for this pay grade is shown as 1 October 2004.
10. Orders 301-0109, Fort Sam Houston, Texas, dated 27 October 2004, revoked Orders 259-0106. Subsequent separation orders are not available.
11. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board 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 contends that his DD Form 214 should be corrected to show his rank as specialist, pay grade E-4.
2. The available evidence shows the applicant's September 2004 separation orders, which listed his rank as specialist, were revoked after the effective date of his discharge. The reason for this action is not known. Subsequent separation orders are not available. Furthermore, the applicant's date of rank is shown as 1 October 2004, 2 days prior to the issuance of the DD Form 214.
3. In the absence of evidence to the contrary, it is presumed that the information recorded on the applicant's DD Form 214 is correct.
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 the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicant's request.
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) AR20090009626
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