IN THE CASE OF:	

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090013401 


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 of his records to show he was advanced to the rank/grade of specialist (SPC)/E-4.

2.  The applicant states, in effect, that he received orders advancing him to SPC/E-4 but was never advanced.

3.  The applicant did not provide any additional documentary evidence in support of his request.  

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 records show he enlisted in the Regular Army (RA) for a period of 3 years on 14 April 1987.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 31K (Combat Signaler).

3.  The applicant’s records show he was advanced to private (PV2)/E-2 on 14 April 1987 and to private first class (PFC)/E-3 on 1 December 1987.  He was assigned to Headquarters and Headquarters Company, 1st Battalion,
1st Aviation Regiment, Fort Riley, KS.

4.  On 23 March 1989, Headquarters, Walter Reed Army Medical Center (WRAMC), Washington, DC, published Orders 54-6 directing the applicant’s reassignment to the Medical Holding Company, WRAMC.  The orders listed the applicant’s rank/grade as PFC/E-3.

5.  On 28 March 1989, a Medical Evaluation Board (MEB) convened at WRAMC and found the applicant had suffered from a schizophrenic disorder.  The MEB listed his rank/grade as PFC/E-3 and recommended his referral to a physical evaluation board (PEB).

6.  On 4 April 1989, a PEB convened at WRAMC and found the applicant’s medical condition prevented satisfactory performance of duty in his grade and MOS.  The PEB rated him under the code of the Veterans Administration Schedule of Rating Disabilities (VASRD) and awarded him a 30-percent disability rating.  The PEB listed his rank/grade as PFC/E-3 and recommended his placement on the Temporary Disability Retirement List (TDRL).

7.  On 2 May 1989, the U.S. Total Army Personnel Agency (Provisional), Alexandria, VA, published Orders D84-29 releasing the applicant from active duty on 23 May 1989 and placing him on the TDRL in his retired rank/grade of PFC/
E-3,  effective 24 May 1989. 

8.  On 24 May 1989, the PEB reconsidered its decision and awarded the applicant a 50-percent disability rating.  Accordingly, on 8 June 1989, the U.S. Total Army Personnel Agency (Provisional), Alexandria, published Orders
D110-29 releasing the applicant from active duty on 29 June 1989 and placing him on the TDRL in his retired grade of PFC effective 30 June 1989.

9.  On 28 June 1989, Headquarters, WRAMC, published Orders 123-32 reassigning the applicant to the U.S. Army Transition Center effective 29 June 1989 for the purpose of separation processing.  The orders listed his rank as PFC.  Accordingly, the applicant was honorably retired on 29 June 1989.  The DD Form 214 (Certificate of Release or Discharge from active Duty) he was issued shows his rank/grade as PFC/E-3.

10.  The applicant’s records do not contain orders showing he was advanced to SPC/E-4.  

11.  Item 18 (Appointments and Reductions) of the applicant’s DA Form 2-1 (Personnel Qualification Record) shows the highest rank he attained was PFC and his date of rank as 1 December 1987.

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that items 5a and 5b of the DD Form 214 show the Soldier's rank and pay grade at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show his rank/grade as SPC/E-4.

2.  The evidence of record shows the applicant was advanced to PV2/E-2 on 14 April 1987 and to PFC/E-3 on 1 December 1987.  Additionally, his reassignment orders, medical documents, and retirement orders indicate his rank/grade was that of a PFC/E-3.  The applicable regulation, in effect at the time, provided that the DD Form 214 would show the Soldier's rank and pay grade as they were at the time of separation.  In this case, the applicant's DD Form 214 correctly lists his rank/grade as PFC/E-3.

3.  There is no evidence in the applicant‘s records and the applicant did not provide any substantiating evidence that shows he was advanced to SPC/E-4 prior to his temporary disability retirement.  Since advancement/promotion of enlisted personnel were announced in DA Forms 4187 (Personnel Action) in effect at the time, in the absence of such forms and/or the authority for this advancement, there is insufficient evidence to grant the applicant's requested relief.


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)                                         AR20090013401



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013401



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1