IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090015305 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as specialist (SPC)/pay grade 
E-4.  He also requests removal of the flag from his records [this is taken to mean the DA Form 268 (Report to Suspend Favorable Actions (FLAG))].

2.  The applicant states, in effect, that his promotion to the rank of SPC/E-4 was entered into the personnel system and he received pay for that rank 11 months since there was no flag to prevent it.  While his commander said he was flagged when he was promoted, that is not true.

3.  The applicant provides two DA Forms 4187 (Personnel Action); a memorandum, subject: Commander's Letter of Evaluation, dated 9 November 2000; and a DA Form 268.

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 military records show he enlisted in the Regular Army on 30 May 1997.  He was awarded the military occupational specialty (MOS) of 67T (UH-60 Helicopter Repairer).  The highest rank/grade he held during his tenure of service was private first class (PFC)/E-3.

3.  The applicant's records maintained in the interactive Personnel Electronic Records Management System (iPERMS) indicate he previously enlisted in the National Guard.  His records show he received an uncharacterized discharge because he did not ship to basic training due to being overweight. 

4.  The applicant's records in iPERMS show his rank as PFC with an effective date of rank (DOR) of 1 October 1998.

5.  In a photocopy of an undated DA Form 4187, signed by his commander, it was requested that the applicant's DOR be changed from 1 June to 30 August 1999.  The justification was that the applicant was erroneously promoted on 
1 June 1999 to SPC/E-4 in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraphs 2-11and 2-12, and table 2-5.  This document further stated that the applicant became eligible for advancement before determination of error was discovered and therefore the applicant would retain advancement.  Paragraph 3 of this document stated the Soldier further requests de-facto status to retain the difference in pay he received.  

6.  A signed DA Form 4187 with a date of 16 December 1999 requested the applicant's pay status be changed from SPC/E-4 to PFC/E-3.  This document stated the applicant was erroneously promoted to E-4 effective 1 June 1999 due to no fault of his own.  It also requested the applicant not be penalized for pay that he already received.  It stated the applicant was not eligible for promotion due to weight control (not meeting weight control standards).

7.  The applicant's Official Military Personnel File (OMPF) shows suspension of personnel actions due to entry into the weight control program.  A DA Form 268 shows a flag was initiated effective 28 August 2000 for weight control program. 

8.  The applicant's DD Form 214 shows he was discharged from active duty on 11 May 2001 for disability with severance pay.  This document shows his rank and pay grade as PFC/E-3.

9.  Section III of Army Regulation 600-8-19 provides the rules for advancing enlisted Soldiers to SPC.  The version in effect at the time states the effective date of advancement will not be earlier than the date the Soldier is eligible.

10.  Army Regulation 600-8-19 shows that Soldiers flagged under the provisions of Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) are in a nonpromotable status.  Failure to initiate a DA Form 268 does not affect the Soldier’s nonpromotable status if a circumstance exists that requires imposition of a flag.

11.  Army Regulation 600-8-19, paragraph 2-11 (Rules for correcting erroneous advancements (SPC and below) states:

	a.  the commander who issued the DA Form 4187 (or the current commander) may revoke an erroneous advancement and make a determination of de facto status (member, who was promoted by competent authority, performed duties of the higher grade, and accepted pay and allowances of the higher grade in good faith and without intent to defraud).

	b.  a Soldier advanced in error who became eligible for advancement before the determination of error was discovered will retain the advancement.  DA Form 4187 will be initiated to adjust DOR.

DISCUSSION AND CONCLUSIONS:

1.  Available evidence indicates the applicant was erroneously advanced to the rank of SPC/E-4, but was allowed to retain all pay and allowances he may have received until the effective date of his reduction to PFC/E-3 which was requested on 16 December 1999.

2.  The applicant states he was not flagged until 28 August 2000.  Since all records are not available, it is not possible to determine whether he was previously flagged and therefore not eligible for advancement to SPC/E-4.  However, even if there was no flag initiated at the time of his erroneous promotion, failure to initiate a DA Form 268 does not affect the Soldier’s nonpromotable status if a circumstance exists that requires imposition of a flag.

3.  The Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  Therefore, it is presumed that the commander's request for the applicant's reduction rank of SPC/E-4 to PFC/E-3 due to an erroneous promotion was proper.

4.  In spite of the applicant's contentions, there is no evidence the DA Form 268 was inaccurate at the time.  Therefore, there is no basis for removing this document from his records.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090015305



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090015305



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1