IN THE CASE OF:
BOARD DATE: 3 August 2010
DOCKET NUMBER: AR20100000546
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 9 May 1991 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as specialist (SPC)/E-4.
2. The applicant states that during Operation Desert Storm he was field-promoted twice to sergeant (SGT)/E-5 because of a shortage of squad leaders. He adds that there is no proof of his promotion to E-5 because no paperwork was completed. He maintains he was required to wear SGT stripes and lead his squad.
3. The applicant provides a copy of his DD Form 214, Honorable Discharge Certificate, Certificate of Achievement, and discharge orders.
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 Army National Guard on 9 November 1988. On 17 January 1991, he was ordered to active duty in support of Operation Desert Shield. The applicant served 3 months and 23 days of active duty and was honorably released on 9 May 1991.
3. The applicant's DD Form 214 shows his rank/pay grade as private first class (PFC)/E-3 with his date of rank listed as 30 September 1990.
4. A DA Form 4187 (Personnel Action) contained in the applicant's military record shows he was promoted to PFC/E-3 effective and with a date of rank of 30 September 1990. The applicant's DA Form 2-1 (Personnel Qualification Record) also lists his promotion to PFC with a date of rank of 30 September 1990.
5. A Certificate of Achievement, dated 20 April 1991, shows the applicant's rank as SPC.
6. An Honorable Discharge Certificate, dated 12 November 1996, shows the applicant was discharged from the U.S. Army Reserve in the rank of PFC.
7. There are no documents in the available records that show the applicant was promoted to the rank of SPC/E-4.
8. Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214. This regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. Paragraph 2-4 requires the preparer to enter the active duty grade or rank and pay grade at the time of separation from the Enlisted Record Brief in item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) and date of pay grade in item 12h (Effective Date of Pay Grade).
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was promoted to PFC/E-3 in September 1990. There is no evidence, and the applicant did not provide any, to show he was promoted to E-4. The fact that he was awarded a certificate of achievement that shows his rank as specialist is not sufficient evidence to change his rank/grade as recorded on his DD Form 214. Therefore, in
the absence of a formal document or pay records showing approval authority for promotion/advancement to SPC/E-4 with an effective date of rank, there is no basis to approve his request.
2. In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy that requirement.
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) AR20100000546
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ABCMR Record of Proceedings (cont) AR20100000546
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