IN THE CASE OF:
BOARD DATE: 12 January 2011
DOCKET NUMBER: AR20100010320
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 14 May 1991 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as captain (CPT)/0-3.
2. He states the information provided shows he was being paid and accumulated points as a CPT.
3. He provides the following:
* Copy of his DD Form 214
* ARPC Form 249-2-E (Chronological Statement of Retirement Points), dated 5 September 2003
* Memorandum, Subject: Eligibility for Promotion as a Reserve Commissioned Officer/Warrant Officer, dated 26 September 1995
* Memorandum, Subject: Selection for Promotion, dated 20 March 1995
* Orders 113-249, dated 23 April 1991
* Orders N-095-006-012, dated 10 January 1995
* Memorandum, Subject: Promotion as a Reserve Commissioned Officer of the Army Under Title 10 U.S. Code (Army Regulation 135-155)
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 applicants records show he was appointed as a second lieutenant (2LT)/O-1 in the United States Army Reserve on 28 March 1990. On
21 November 1990, he was ordered to active duty in support of Operation Desert Shield/Storm. He served 5 months and 14 days and was released from active duty (REFRAD) on 14 May 1991.
3. Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) of his DD Form 214 shows 2LT/O-1. His date of rank is listed as 28 March 1990.
4. On 23 January 1992, he was promoted to first lieutenant and on 22 January 1996, he was promoted to CPT.
5. Army Regulation 635-5 (Separation Documents) 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.
6. Army Regulation 635-5 further states that for item 4a and 4b, enter active duty grade of rank and pay grade at time of separation.
DISCUSSION AND CONCLUSIONS:
Evidence of record shows the applicant held the rank/grade of 2LT/O-1 at the time of his REFRAD which is properly noted on his DD Form 214. He was not promoted to CPT/O-3 until 22 January 1996, over four years after his date of separation on 14 May 1991. Any subsequent promotions or achievements that occurred after his date of separation from active duty cannot be listed on this
DD Form 214. Therefore, there is no basis for granting his 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) AR20100010320
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ABCMR Record of Proceedings (cont) AR20100010320
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