IN THE CASE OF:
BOARD DATE: 7 January 2010
DOCKET NUMBER: AR20090011950
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 that his rank on his U.S. Army Reserve (USAR) discharge orders be changed to specialist instead of private first class.
2. The applicant states that he was discharged from the USAR Control Group with an incorrect rank. He contends that his date of rank (DOR) for promotion to specialist is 5 May 1994. He also points out that the Automated Orders and Resource System Discharge Order History incorrectly shows his grade as private first class but his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) properly shows his rank as specialist and pay grade as E-4.
3. The applicant provides copies of his USAR discharge orders, an NGB Form 22, an Automated Orders and Resource System Discharge Order History, and a DA Form 4187 (Personnel Action) 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 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 enlisted in the USAR on 4 September 1985 for a period of 8 years. He enlisted in the Maryland Army National Guard on 19 February 1987. He was honorably discharged on 18 February 1990 and transferred to the USAR Control Group (Annual Training). He again enlisted in the Maryland Army National Guard on 1 April 1993 for a period of 3 years.
3. A DA Form 4187, dated 4 May 1994, shows the applicant was advanced to the rank of specialist effective 4 May 1994.
4. On 1 February 1995, the applicant was honorably discharged from the Maryland Army National Guard in the rank of specialist and transferred to the USAR Control Group (Reinforcement).
5. The applicant's NGB Form 22 for the period ending 1 February 1995 shows his rank is specialist, his pay grade is E-4, and his DOR is 4 May 1994. His discharge orders from the Army National Guard, dated 5 January 1995, show his rank as specialist.
6. USAR Personnel Center Orders D-06-654122, dated 25 June 1996, show the applicant was honorably discharged from the USAR in the rank of private first class.
7. Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows he was appointed as a specialist effective 4 May 1994.
8. There is no evidence of record which shows the applicant was reduced in rank prior to his discharge from the USAR.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows the applicant was advanced to specialist effective 4 May 1994 and there is no evidence of record which shows he was reduced in rank prior to his discharge from the USAR on 25 June 1996. Therefore, the DA Form 4187 which shows the applicant was advanced to specialist on 4 May 1994, the entry in item 8 on his DA Form 2-1 which shows he was appointed specialist on 4 May 1994, and his NGB Form 22 which shows his rank as specialist and DOR is 4 May 1994 are accepted as sufficient evidence on which to amend his USAR discharge orders to show his rank as specialist.
BOARD VOTE:
____X___ ____X___ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. amending USAR Personnel Center Orders D-06-654122, dated 25 June 1996, to show the applicant's rank as specialist; and
b. issuing to the applicant an Honorable Discharge Certificate from the USAR, dated 25 June 1996, which shows his rank as specialist.
____________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.
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