IN THE CASE OF:
BOARD DATE: 02 March 2010
DOCKET NUMBER: AR20090014272
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 two applications, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to change his pay grade from E-1 to E-3 and to change his uncharacterized service to honorable.
2. The applicant states that he was in pay grade E-3 when he was discharged. The applicant also states that he was told that his discharge would be changed to an honorable discharge in 5 years.
3. The applicant provides his DD Form 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 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 military records show he enlisted in the Regular Army on
27 December 1990, was awarded the military occupational specialty of combat engineer, and was promoted to pay grade E-3.
3. On 12 March 1991, the applicant was reduced from pay grade E-3 to pay grade E-2.
4. On 10 June 1991, the applicant's commander notified him of his intent to recommend him for discharge due to entry level status performance and conduct. The applicant was advised of his rights in conjunction with that notification.
5. On 13 June 1991, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty. His punishment included a reduction from pay grade E-2 to pay grade E-1.
6. On 24 June 1991, the applicant's commander forwarded a recommendation to discharge the applicant for entry level status performance and conduct. That recommendation was approved by the appropriate authority.
7. Accordingly, on 8 July 1991, the applicant was discharged in pay grade E-1 for entry level status performance and conduct with uncharacterized service.
8. Army Regulation 635-200 (Enlisted Personnel), paragraph 3-9, specifies that Soldiers who are within the first 180 days of their enlistments when separation processing is started will normally receive an uncharacterized entry level separation. The only authorized exceptions are in those cases where an under other than honorable conditions discharge is authorized and/or warranted or when the Secretary of the Army determines on a case-by-case basis that an honorable discharge is warranted by unusual circumstances involving the individual's personal conduct and performance of duty. However, such honorable discharges may be applied only in cases involving changes in service obligation, convenience of the Government and secretarial plenary authority.
DISCUSSION AND CONCLUSIONS:
1. The applicant enlisted on 27 December 1990 and the commander notified the applicant of his intent to discharge the applicant on 10 June 1991. Therefore, the applicant's discharge was initiated 5 months and 13 days after his enlistment which means his service was required to be uncharacterized.
2. While the applicant had been promoted to pay grade E-3, he was reduced twice. As such, he was properly discharged in pay grade E-1.
3. The Army does not and has never had a policy to upgrade a discharge based on the passage of time.
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) AR20090014272
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ABCMR Record of Proceedings (cont) AR20090014272
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