IN THE CASE OF:
BOARD DATE: 25 March 2010
DOCKET NUMBER: AR20090016769
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 records to show he held the rank/grade of sergeant (SGT)/pay grade E-5 instead of corporal (CPL)/pay grade E-4 at the time of discharge.
2. The applicant states, in effect, he appeared before a promotion board while deployed during the Gulf War and he was recommended for promotion to
SGT/E-5. He also states his records are incorrect because his promotion packet was destroyed in a fire along with the mail truck that was delivering it to Germany. He wants this correction so he may be buried with the proper rank/grade.
3. The applicant provides copies of a DD Form 214 (Certificate of Release or Discharge from Active Duty) as documentary evidence 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 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 record shows he enlisted in the Regular Army and entered active duty on 9 March 1982 in the rank/grade of private (PVT)/E-1. Upon completion of advanced individual training he was awarded military occupational specialty (MOS) 36K (Wire Systems Installer). At a later date, he was reclassified into MOS 31K (Combat Signaler). He served through a series of immediate reenlistments and a variety of duty stations in both the Continental U.S. and overseas.
3. The applicant was promoted to
* private (PV2)/E-2 on 9 September 1982
* private first class (PFC)/E-3 on 9 November 1982
* specialist four (SP4)/E-4 on 1 August 1983
4. On 2 March 1986, he was laterally appointed from SP4/E-4 to CPL.
5. On 9 April 1986, he appeared before an Enlisted Promotion Board and was recommended for promotion to SGT. As a result, he was added to the AAC-C10 (Recommended List for Promotion of Enlisted Personnel) which depicted his MOS and the amount of promotion points he had.
6. The applicant's DA Form 201 (Military Personnel Records Jacket) contains his initial DA Form 3355 (Promotion Point Worksheet) and six other documents showing his periodic promotion point reevaluations and recomputations during the period April 1986 through June 1992.
7. The applicant's rank/grade appears as CPL on:
* a DA Form 4187 (Personnel Action), signed by him on 20 February 1992
* separation orders, dated 24 March 1992
* a DA Form 2A (Personnel Qualification Record, Part 1), dated 18 June 1992, showing he was promotable
8. The applicant's record is devoid of any orders and he has not provided any orders promoting him to SGT/E-5.
9. Item 4a (Grade, Rate or Rank) of the applicant's DD Form 214 shows his rank as CPL. Item 4b (Pay Grade) shows his pay grade as E-4. Item 21 (Signature of Member Being Separated) shows he reviewed this document for administrative accuracy and signed it at the time of separation.
10. A DD Form 4/1E (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 18 September 1992, shows the applicant enlisted in the U.S. Army Reserve for a period of 3 years in the pay grade of E-4.
11. Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214. This regulation stated the active duty rank and pay grade at the time of separation will be entered in Items 4a and 4b of the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his record should be corrected to show he held the rank/grade SGT/E-5 at the time of his separation was carefully considered and determined to lack merit.
2. Contrary to his statement, no evidence shows the applicant's promotion packet was destroyed in a fire and was missing from his records at the time of separation.
3. The applicant's record contains no evidence and he has failed to provide any evidence showing he was promoted to the rank/grade of SGT/E-5. Therefore, he is not entitled to correction of his records to show he was promoted.
4. Without evidence to the contrary, the entries in items 4a and 4b of the applicant's DD Form 214 are presumed to be correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant failed to submit evidence satisfying this requirement. Therefore, he is not entitled to the 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.
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