IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100010570 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his correct rank and pay grade, military occupational specialty (MOS), and period of overseas service.

2.  The applicant states his battalion commander issued a letter informing him that if he extended his term of service or reenlisted to meet the time-in-service requirements, he would be promoted to staff sergeant (SSG)/pay grade E-6.  He also states the commander indicated he would disregard an Article 15.

	a.  He states he chose to get out of the Army and was reduced to specialist four (SP4)/pay grade E-4.  He adds that his Honorable Discharge Certificate shows him as sergeant (SGT)/pay grade E-5 at the time of his discharge, but his DD Form 214 shows SP4/E-4.

	b.  He states that as a SGT he served in an SSG position as a squad leader and also filled in as platoon sergeant, which was a sergeant first class/pay grade E-7 position.

	c.  He concludes that his rank of SGT/E-5 should be reinstated and his DD Form 214 corrected.  He adds that he held MOS 12B (Combat Engineer) for 5 years, 7 months, and 2 weeks; he served overseas for 6 months and 8 days; and this information should also be corrected on his DD Form 214.

3.  The applicant provides a copy of his DD Form 214 and a DA Form 2496 (Disposition Form) in support of his request.

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 enlisted in the Regular Army for a period of 3 years on 9 February 1977.  During the course of his active duty, he voluntarily extended the term of his enlistment on three separate occasions to a total period of 5 years and 7 months and established his expiration of term of service (ETS) as 8 September 1982.  Based on an injury the applicant sustained on 8 September 1982, he was voluntarily retained 12 days past his ETS date.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record), in pertinent part, shows in:

	a.  item 5 (Oversea Service) that he served for 3 months in Korea from 24 July 1978 through 1 November 1978;

	b.  item 6 (Military Occupational Specialties) that he was awarded primary MOS 12B1O on 12 May 1977;

	c.  item 18 (Appointments and Reductions) that he was:

* promoted to SP4/E-4 with a date of rank (DOR) of 5 October 1978
* promoted to SGT/E-5 with a DOR of 12 April 1980
* reduced to SP4/E-4 with a DOR of 1 August 1982

	d.  item 35 (Record of Assignments) that he served in duty MOS 12B2O [E-5] as a squad leader with Company A, 19th Engineer Battalion, Fort Knox, KY, from 27 May 1981 through 19 September 1982.

4.  Headquarters, Fort Sheridan, IL, Orders 83-2, dated 29 April 1980, promoted the applicant from SP4/E-4 to SGT/E-5 in MOS 12B2O with a DOR of 12 April 1980 effective 1 May 1980.

5.  Headquarters, U.S. Army Armor Center and Fort Knox, KY, Orders 139-26, dated 20 July 1982, reassigned the applicant to the U.S. Army Separation Transfer Point for separation processing on 8 September 1982.

6.  On 25 August 1982, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 9 August 1982 for wrongfully appearing at a commercial eating establishment with his boots unlaced, pants not bloused, and shirt completely unbuttoned and not tucked in his pants; on 9 August 1982 for being disrespectful in language toward a superior noncommissioned officer who was then in the execution of his office; and on 9 August 1982, 19 August 1982, 23 August 1982, and 24 August 1982, for failing to go at the times prescribed to his appointed places of duty without authority.

	a.  His punishment consisted of reduction to SP4/E-4 and forfeiture of $300.00 pay.

	b.  On 7 September 1982, the applicant indicated with a checkmark and his signature that he did not appeal the NJP.

7.  Headquarters, U.S. Army Armor Center and Fort Knox, KY, Orders 182-105, dated 20 September 1982, amended Orders 139-26, dated 20 July 1982, to correct the applicant's rank from SGT to SP4 and also changed his separation date to 20 September 1982.

8.  The applicant's DD Form 214 shows he entered active duty on 9 February 1977 and he was honorably discharged on 20 September 1982.  At the time he had completed 5 years, 7 months, and 12 days of net active service.  It also shows in:

	a.  item 4a (Grade, Rate or Rank) the entry "SP4"; item 4b (Pay Grade) the entry "E4"; and item 12h (Effective Date of Pay Grade), the entry "82 08 01" (i.e., 1 August 1982);

	b.  item 11 (Primary Specialty) the entry "12B1O, Combat Engineer, 05 years, 04 months"; and

   c.  item 12f (Foreign Service) the entry "00 03 08" (i.e., 0 years, 3 months, and 8 days).

9.  The applicant provides a DA Form 2496, dated 12 August 1982, subject:  Precondition Service Obligation for Promotion, that shows the Chief, Enlisted Management Division, 194th Military Personnel Office, Fort Knox, KY, informed the applicant's company commander that it was the intent of the battalion commander to promote the applicant to SSG/E-6.  However, the applicant was required to extend his ETS to at least 1 September 1983 in order to satisfy the remaining service requirements for promotion to SSG/E-6 in September 1982.

10.  There is no evidence in the applicant's military personnel records that he was promoted from SP4 to SGT subsequent to the imposition of the NJP in August 1982, which he declined to appeal on 7 September 1982.

11.  There is no evidence and the applicant provides insufficient evidence to show the commander indicated he would disregard or set aside the NJP the applicant received to allow his promotion to SSG in September 1982.

12.  There is no evidence the applicant extended his term of service or reenlisted to meet the time-in-service requirements in order to be promoted to SSG/E-6.

13.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, enlistment/ reenlistment documents, personnel finance records, discharge documents, separation orders, military personnel records jacket (MPRJ), or any other document authorized for filing in the official military personnel file (OMPF).

	b.  Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214.

		(1)  Items 4a and 4b state to enter the active duty grade of rank and pay grade at the time of separation.

		(2)  Item 11 states to enter the primary MOS or area of concentration (AOC) and all additional MOS/AOC service for a period of 1 year or more during the Soldier's continuous active military service.  For each MOS/AOC, list the title with the years and months served.  In determining time eligibility for listing of each specialty, it states that 16 days or more count as 1 month; however, do not count basic combat training and advanced individual training.

		(3)  Item 12 (Record of Service) states to use extreme care in completing this block since post-service benefits, final pay, retirement credit, etc., are based upon the information contained herein.

			(a)  Item 12f states to enter the total amount of foreign service completed during the period covered in item 12c (Net Active Service This Period).  Obtain the foreign service listed in item 5 of the Personnel Qualification Record for enlisted Soldiers to compute this entry.  If necessary, verify the foreign service in the MPRJ/OMPF.

			(b)  Item 12h (Effective Date of Pay Grade) states to enter the effective date of pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his rank and pay grade as SGT/E-5; that he held MOS 12B for 5 years, 7 months, and 2 weeks at the time of his separation; and that he served overseas for 6 months and 8 days.

2.  Records show the applicant was reduced to SP4/E-4 based on punishment imposed under Article 15 in August 1982.

	a.  There is no evidence of record to show the applicant was promoted to SGT/E-5 subsequent to his reduction and prior to his discharge on 20 September 1982.

	b.  There is no evidence of record to show the commander set aside the NJP he imposed against the applicant to allow his promotion to SSG in September 1982.

	c.  While the applicant contends that his Honorable Discharge Certificate shows his rank as SGT, he does not provide a copy of the document.  In any event, the certificate alone would provide insufficient evidence to support his contention.

	d.  Therefore, in view of all of the foregoing, there is no basis to correct the rank, pay grade, and effective date of pay grade shown on the applicant's DD Form 214.

3.  Records show the applicant was awarded MOS 12B on 12 May 1977.  His DD Form 214 shows he held the MOS for 5 years and 4 months.



	a.  A calculation for the period 12 May 1977 to 20 September 1982 shows:

		    1982  09  20  date of discharge
		-   1977  05  12  date MOS awarded
		=      05  04  08
		+				 1  day inclusive
		        05  04  09   total period MOS held

	b.  The regulatory guidance for item 11 shows that 16 days or more count as 1 month.  Accordingly, 15 days or less do not count as 1 month.

	c.  Thus, the entry in item 11 of the applicant's DD Form 214 is correct.  Moreover, the applicant's contention that he held the MOS for 5 years, 7 months, and 14 days is not supported by the evidence of record.  Therefore, he is not entitled to correction of item 11 of his DD Form 214.

4.  Records show the applicant served overseas in Korea from 24 July 1978 through 1 November 1978.

	a.  A calculation for the period 24 July 1978 to 1 November 1978 shows:

		    1978  11  01  ending date of foreign service
		-   1978  07  24  beginning date of foreign service
		=      00  03  07
		+				 1  day inclusive
		        00  03  08   total period of foreign service

	b.  His DD Form 214 shows he served overseas for a total of 3 months and 8 days.

	c.  Thus, the entry in item 12f of the applicant's DD Form 214 is correct.  Moreover, the applicant's contention that he served overseas for 6 months and 8 days is not supported by the evidence of record.  Therefore, he is not entitled to correction of item 12f of his DD Form 214.

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 has failed to submit evidence that would satisfy this 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)                                         AR20100010570



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ABCMR Record of Proceedings (cont)                                         AR20100010570



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