IN THE CASE OF:
BOARD DATE: 20 October 2010
DOCKET NUMBER: AR20100009455
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 (Report of Separation from Active Duty) to show his rank/grade as sergeant (SGT)/E-5.
2. The applicant states he was on transitional leave when he was promoted to the rank/grade of SGT/E-5 and that his DD Form 214 should be corrected accordingly.
3. The applicant provides no additional documentation in support of this case.
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 enlisted in the Regular Army on 3 May 2000 and he successfully completed basic and advanced individual training. He was awarded military occupational specialty 19D (Cavalry Scout).
3. Headquarters, 3rd Infantry Division (Mechanized), Fort Stewart, GA, Orders 113-384, dated 22 April 2004, show the applicant was promoted to the rank/grade of SGT/E-5, effective 1 May 2004.
4. On 2 May 2004, the applicant was honorably released from active duty by reason of completion of required active service. The DD Form 214 he was issued shows in:
* item 4a (Grade, Rate, or Rank) the entry "SPC" [specialist]
* item 4b (Pay Grade) the entry "E-4"
* item 12h (Effective Date of Pay Grade) the entry "2001 12 01"
5. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized preparation of the DD Form 214. In pertinent part, it states the DD Form 214 is a synopsis of the Soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge. For item 4 it states to enter the active duty grade or rank and pay grade at the time of separation.
DISCUSSION AND CONCLUSIONS:
Evidence of record shows the applicant was promoted prior to his separation from active duty to the rank/grade of SGT/E-5 with an effective date of 1 May 2004. Therefore, his DD Form 214 should be amended to show he was promoted to the rank/grade of SGT/E-5 with an effective date of 1 May 2004.
BOARD VOTE:
__X_____ ___X____ ____X___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. deleting from item 4a of his DD Form 214 the entry "SPC" and replacing it with the entry "SGT";
b. deleting from item 4b of his DD Form 214 the entry "E-4" and replacing it with the entry "E-5";
c. deleting from item 12h of his DD Form 214 the entry "2001 12 01" and replacing it with the entry "2004 05 01"; and
d. paying him any monies due as a result of this correction.
__________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) AR20100009455
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ABCMR Record of Proceedings (cont) AR20100009455
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