IN THE CASE OF:
BOARD DATE: 26 January 2010
DOCKET NUMBER: AR20090010202
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 record and DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank as sergeant (SGT).
2. The applicant submits no statement in support of his application.
3. The applicant provides staff sergeant (SSG) promotion orders in support of 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 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 record shows that on 15 February 1979, he reenlisted in the Regular Army (RA).
3. The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Promotions and Reductions) that he was promoted to sergeant (SGT) on
10 September 1977, and he was promoted to SSG on 8 October 1981. It also shows he was reduced to SGT on 7 May 1981, and to specialist four (SP4) on
10 August 1981.
4. On 4 May 1981, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being incapacitated for the proper performance of his duties on or about 22 April 1982, as a result of indulgence in intoxicating liquor. His punishment for this offense was a reduction to SGT (suspended for 6 months). The suspended portion of his punishment was vacated on 3 August 1981.
5. On 10 August 1981, the applicant accepted NJP for operating a passenger vehicle while drunk and for wrongfully possessing marijuana on or about
31 July 1981. His punishment for these offenses was a reduction to SP4 and a forfeiture of $250.00 pay for 2 months.
6. On 14 February 1982, the applicant was honorably discharged under the provisions of chapter 2, Army Regulation 635-200 due to expiration term of service. Items 4a and 4b of the DD Form 214 he was issued at the time confirms he held the rank of SP4 on the date of discharge, and item 12h (Effective Date of Pay Grade) confirms his date of rank for SP4 was 10 August 1981.
7. The applicant provides Headquarters, U.S. Army Regional Personnel Center, Baumholder, Orders 284-56, dated 27 October 1980, which promoted him to SSG, with a date of rank of 8 October 1980 and an effective date of 1 November 1980.
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 separation.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his record should be corrected to show his rank as SGT was carefully considered. However, there is insufficient evidence to support this claim.
2. By regulation the rank and pay grade held by the member on the date of separation will be entered on the DD Form 214.
3. The evidence of record confirms the applicant was promoted to SSG, on
8 October 1980. He was reduced to SGT on 7 May 1981 and to SP4 on
10 August 1981. As a result, his record clearly shows he held the rank of SP4 on the date of separation and this rank is properly reflected on his DD Form 214.
4. The available evidence fails to show the applicant was promoted back to either SGT or SSG subsequent to his 10 August 1981 reduction to SP4. Therefore, there is an insufficient evidentiary basis to support granting the requested relief.
5. 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) AR20090010202
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