BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090010200 


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 the rank and pay grade listed in items 4a (grade, rate, or rank) and 4b (pay grade) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show her rank as private/E-2 (PV2/E-2) vice private/E-1 (PV1/E-1), as is currently listed. 

2.  The applicant states, in effect that her DD Form 214 does not reflect the rank and pay grade she held at the time of her retirement because she was in a coma and unable to review her DD Form 214 prior to her separation.  

3.  The applicant provides her DD Form 214 and Certificate of Retirement in support of her 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 she enlisted in the Regular Army and entered active duty on 7 April 1999.  Her record confirms she never completed advanced individual training (AIT) and was never awarded a military occupational specialty (MOS).  

3.  The applicant's record shows that a physical evaluation board (PEB) determined she was physically unfit and recommended she be temporarily retired effective 5 October 1999, and that she be placed on the Temporary Disability Retired List (TDRL) effective 6 October 1999.

4.  On 5 October 1999, the applicant was retired after completing a total of 5 months, and 29 days of active military service.  The DD Form 214 she was issued at the time lists her rank and pay grade as PV1/E-1 in items 4a and 4b.  Item 12h (Effective Date of Pay Grade) contains an entry listing the applicant's DOR as 7 April 1999.

5.  The applicant's Official Military Personnel File shows she was advanced to the rank and pay grade of PV2/E-2, effective 7 October 1999.

6.  On 22 August 2001, the applicant's case was evaluated by a formal PEB, which convened at Fort Lewis, WA.  The DA Form 199 (PEB Proceedings) shows her rank and pay grade as PV2/E-2 in item 2 (rank).  It also shows that the PEB found the applicant was physically unfit and recommended a disability rating of 100% for her Goodpasture's Syndrome, and recommended she be permanently retired by reason of physical disability.  

7.  U.S. Army Physical Disability Agency (USAPDA) Orders D185-1, dated 
21 September 2001, directed the applicant's removal from the TDRL on 
21 September 2001 and her permanent physical disability retirement in her current grade of rank on 22 September 2001.  The standard name line of this document lists her rank and pay grade as PV2/E-2.  

8.  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 item-by-item DD Form 214 preparation instructions.  The instructions for items 4a and 4b state, in effect, to enter the rank and pay grade held by the member on the date of his/her separation.  There are no provisions for correcting a DD Form 214 based on actions that take place subsequent to a member's separation from the particular period of active duty service covered by the 
DD Form 214.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her DD Form 214 should be corrected to reflect her rank and pay grade as PV2/E-2 was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By regulation, the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides a brief, clear-cut record of 
active duty service at the time of release from active duty, retirement, or discharge.  There are no regulatory provisions that allow for correcting a 
DD Form 214 based on actions that take place subsequent to the specific active duty period covered by the DD Form 214.  

3.  In this case, the evidence confirms the applicant held the rank and pay grade of PV1/E-1 on 5 October 1999, the date of her retirement by reason of temporary disability.  It also confirms the applicant was advanced to PV2/E-2 on 7 October 1999, two days after her retirement (although it is not clear that this was a proper advancement).  She clearly was not advanced prior to her retirement.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.   

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 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)                                         AR20090010200



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090010200



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1