BOARD DATE:	  9 November 2010 

		DOCKET NUMBER:  AR20100013253 


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 (Certificate of Release or Discharge from Active Duty) to reflect his rank/grade at the time of discharge as private first class (PFC)/E-3 instead of private (PVT)/E-1.

2.  The applicant states when he was separated his pay grade was E-3 but his DD Form 214 shows E-1.

3.  The applicant provided no additional evidence. 

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 U.S. Army Reserve on          13 September 2005 in the rank/grade of PVT/E-1.  On 4 October 2005, he was ordered to initial active duty for training at Fort Leonard Wood, MO for basic combat and advanced individual training.

3.  On 18 October 2006, while still in basic training, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) for unsatisfactory performance with an honorable discharge.  The commander cited his inability to pass the Army Physical Fitness Test on 21 occasions and failure to meet training requirements as the bases for the action.  The notification listed his rank as PVT. 

4.  On 18 October 2006, the applicant acknowledged notification of the proposed discharge action by signing the document in the appropriate block.  He declined to consult with legal counsel and he was advised of the basis for the contemplated separation action; the effect on future enlistment in the Army; the possible effects of a general discharge; and of the procedures and rights that were available to him.  He voluntarily consented to this discharge.  

5.  On 20 October 2006, his chain of command recommended that he be separated under the provisions of chapter 13 of Army Regulation 635-200 by reason of unsatisfactory performance.  The commander noted all rehabilitation attempts within the company and numerous counseling attempts resulted in failure.  His rank was listed as PVT.

6.  On 23 October 2006, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 13 with an honorable discharge.  His rank was listed as PVT.  On 1 November 2006, he was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 13, by reason of unsatisfactory performance with an honorable discharge.  

7.  Item 4a (Grade, Rate, or Rank) of his DD Form 214 shows PV1 and item 12h (Effective Date of Pay Grade) shows 13 September 2005.  He authenticated this form by placing his signature in the appropriate block.

8.  There are no promotion orders in his record to show he was promoted to the rank/grade of private (PV2)/E-2 or PFC/E-3.

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the qualifications and requirements for enlisted promotions.  It states, in pertinent part, that promotions to PV2 and PFC will be made automatically by the Total Army Personnel database except for Soldiers on initial active duty for training.
Training promotions may be made as follows:  Upon completion of basic combat training, commanders may advance up to10 percent of each company’s assigned PV1s to PV2 and PV2s to PFC without regard to the time in service and time in grade requirements.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his rank/grade as PFC/E-3.  There is insufficient evidence to support this contention.

2.  The evidence of record shows at the time of his discharge on 1 November 2006, he held the rank/grade of PVT/E-1.  His record is void of any promotion orders to PV2/E-2 or PFC/E-3.  In addition, in accordance with Army Regulation 600-8-19, as he had not completed basic combat training he was ineligible to be promoted to PV2/E-2.  Therefore, he is not entitled to the requested relief.   

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)                                         AR20100013253



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ABCMR Record of Proceedings (cont)                                         AR20100013253



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