IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090012236 


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, correction to her records to show she was promoted to pay grade E-4 prior to her disability separation.  She also requests correction of Item 12d (Total Prior Action Service) on her DD Form 214 (Certificate of Release from Active Duty) for the period ending 28 July 2005.

2.  The applicant states, in effect, she believes that she was entitled to be promoted to pay grade E-4 prior to her separation.  She also states that Item 12d of her 2005 DD Form 214 does not reflect her 2 years of active service in the Navy. 

3.  In support of her application, the applicant provides copies of her 1994 and 2005 DD Forms 214.  

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 submitted a copy of her 1994 DD Form 214 that shows she enlisted in the United States Navy on 5 May 1992 and was honorably released from active duty on 4 May 1994.  The DD Form 214 shows she was credited with 2 years net active service, 3 months and 28 days prior inactive service, and no lost time.

3.  The applicant enlisted in the Regular Army in pay grade E-1 on 10 July 2003. She was advanced to pay grade E-2 on 10 January 2004 and to pay grade E-3 on 10 October 2004.  There is no evidence to show the applicant was recommended for promotion to pay grade E-4 during her period of service.

4.  The applicant was honorably discharged in pay grade E-3, on 28 July 2005, by reason of permanent disability with severance pay.  She was issued a DD Form 214 that shows she was credited with 2 years and 19 days net active service and no lost time.  Item 12d and Item 12e (Total Prior Inactive Service) shows zero credit for prior active and inactive service.  

5.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed the policies and procedures for the promotion and reduction of enlisted Soldiers.  Paragraph 2-3 specified that the Automatic Enlisted Advancement Report or a DA Form 4187 (Personnel Action) is the official instrument used by the commander to recommend Soldiers for promotion to SPC and below.  The promotion to pay grade E-2 requirement is 6 months' time in service (TIS) (may be waived at 4 months TIS), the promotion to pay grade E-3 requirement is 12 months' TIS (may be waived at 6 months TIS), and the promotion to pay grade E-4 requirement is 24 months' TIS (may be waived at 18 months TIS).

6.  Army Regulation 635-5 (Separation Documents), governs the preparation of the DD Form 214.  This regulation specifies that total prior active military service from a previously-issued DD Form 214 will be entered in Item 12d, less any lost time.  Total Prior Inactive Service from a previously-issued DD Form 214 will be entered in Item 12e, less any lost time.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the Regular Army on 10 July 2003 in pay grade E-1.  She was advanced to pay grades E-2 and E-3 on 10 January 2004 and 10 October 2004, respectively.  There is no evidence to show she was recommended for promotion to pay grade E-4 prior to her separation on 28 July 2005.

2.  The applicant has provided insufficient evidence to show she was not properly advanced or promoted to pay grade E-4 and is now entitled to that promotion with back pay and allowances.  Therefore, there is no basis for granting this request.

3.  The applicant’s contention that the DD Form 214 she was issued on 28 July 2005 should reflect her prior active service from 5 May 1992 to 4 May 1994 in the Navy has been noted and found to have merit. 

4.  The evidence of record shows the applicant enlisted in the Navy on 5 May 1992 and was honorably separated on 4 May 1994.  She was issued a DD Form 214 crediting her with 2 years of net active service.  Upon her separation from the Regular Army on 28 July 2005, she was issued a DD Form 214 that does not show a credit of 2 years total prior active service in Item 12d.  She is therefore entitled to correction of Item 12d of her DD Form 214 for the period ending 28 May 2005 to show 2 years total prior active service.

5.  Item 12e of her DD Form 214 for the period ending 28 July 2005 does not reflect her total prior inactive service of 3 months and 28 days.  Therefore, Item 12e should also be corrected to show a credit of 3 months and 28 days total prior inactive service.  Correction to Items 12d and 12e does not require any adjustment of the other blocks in Item 12 (Record of Service).

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
   
   a.  deleting the entries “0000 00 00" from Items 12d and 12e of the applicant's DD Form 214 for the period ending 28 July 2005 and adding the entries 
"0002 00 00" and “0000 03 28,” respectively; and  
   
   b.  providing the applicant a corrected DD Form 214 that includes these corrections.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to promotion to pay grade E-4 prior to separation on 28 July 2005.




      _______ _   _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)                                         AR20090012236



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ABCMR Record of Proceedings (cont)                                         AR20090012236



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