BOARD DATE: 7 October 2010
DOCKET NUMBER: AR20100009465
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 effect, correction of his records to show he was a private (PV2)/E-2 instead of a private (PV1)/E-1 at the time of enlistment and college benefits in the amount rewarded.
2. The applicant states, in effect, he entered the Army in June 1982 under the Delayed Entry Program (DEP) as an E-2 because he brought another person in with him, but his records show him as an E-1. He was never compensated for the college benefits ($10,000.00) he was promised.
3. The applicant provides no supporting documentation.
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. Army Regulation 15185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-8 states that the ABCMR staff will review each application to determine if it meets the criteria for consideration by the ABCMR. The application may be returned without action if the applicant has not exhausted all other administrative remedies or it does not have jurisdiction to grant the requested relief
3. The issue of receipt of or reimbursement for educational benefits is under the jurisdiction of the Department of Veterans Affairs (DVA). The ABCMR does not have jurisdiction over such issues; therefore, this portion of the applicant's request will not be discussed further in these Proceedings.
4. On 18 June 1981, the applicant enlisted in the U.S. Army Reserve (USAR) pay grade E-1 under the DEP. His DD Form4/1 (Enlistment/Reenlistment Document - Armed Forces of the United States) states, "The agreements in this section and the attached annex(es) are all the promises made to me by the Government. ANYTHING ELSE ANYONE HAS PROMISED ME IS NOT VALID AND WILL NOT BY HONORED." His enlistment contract contains no indication of entitlement to entry at a higher pay grade or college benefits.
5. On 10 June 1982, he was discharged from the USAR DEP and he enlisted in the Regular Army as an E-1 on 11 June 1982. He completed training and he was awarded military occupational specialty (MOS) 12B (Combat Engineer).
6. The applicant was advanced to E-2, effective 10 December 1982.
7. The available record contains no documentation related to the applicant's separation other than it was for a physical disability rated as 10 percent disabling.
8. The applicant DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 7 June 1983 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24e(3), by reason of physical disability with severance pay), in pay grade E-2. He completed 11 months and 27 days of total active service.
9. Army Regulation 15185, paragraph 2-9, states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant states he enlisted in the Army as an E-2 because he brought another person in as well, but he was not paid as an E-2.
2. He was advanced to pay grade E-2 on 10 December 1982. The record does not contain and the applicant has not provided any evidence to support his contention that he was entitled to an earlier date of advancement to E-2.
3. Therefore, 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) AR20100009465
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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