IN THE CASE OF:	  

		BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100013566 


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 show his rank and pay grade as private first class (PFC)/E-3.  He also requests back pay for his total period of service.

2.  The applicant states all documents were submitted within the 12 month time limit.  He contends that he did everything he could to get his rank adjusted.

3.  The applicant provides a DD Form 149 (Application for Correction of Military Records), dated 22 June 1988.

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 DD Form 4 (Enlistment/Reenlistment Document) shows he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 
15 August 1986 in pay grade E-1.  On 18 August 1986, he was discharged from the DEP and enlisted in the Regular Army in pay grade E-1.

3.  Headquarters, 21st Replacement Battalion (Germany), Orders Number 
345-013, dated 14 December 1986, shows his rank as PFC.

4.  A Bar to Reenlistment Certificate, dated 13 May 1987, shows his rank as PFC.

5.  On 21 March 1988, action was initiated to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) chapter 5, (Separation for Convenience of the Government).  His entire separation packet shows his rank as PFC.

6.  A DA Form 268 (Report to Suspend Favorable Personnel Actions), dated 
25 May 1988, shows his ranks as PFC.

7.  He provides a DD Form 149 (Application for Correction of Military Record), dated 22 June 1988, in which he requested an adjustment of his date of rank to PFC.  He contended that upon entry into basic training, he should have been given the pay grade of E-3 due to his prior status in the Junior Reserve Officers' Training Course (JROTC).  He had successfully completed 4 years of JROTC.  There is no evidence showing that this request was submitted to or received by the ABCMR for action.

8.  On 9 August 1988, he was released from active duty.  His separation orders show his rank as PFC.  Items 4a and 4b (Grade, Rate or Rank/Pay Grade) of his DD Form 214 show his rank and pay grade as private (PV2)/E-2.

9.  There is no evidence in his Official Military Personnel File (OMPF) that shows he was reduced in rank from PFC/E-3 to PV2/E-2 prior to his release from active duty.  There is also no evidence indicating he was receiving his military pay at the incorrect grade, rate or rank.

10.  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:  

	a.  It establishes standardized policy for the preparation of the DD Form 214.

	b.  It states the DD Form 214 is a summary of the Soldier's most recent period of continuous active service.  It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge.

	c.  It provides that in items 4a and 4b, enter the active duty grade of rank and pay grade at time of separation.

11.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-9 states 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's contention that his DD Form 214 should be corrected to show his rank and pay grade as PFC/E-3 and that he is entitled to back pay has been carefully reviewed.

2.  His separation packet and orders show his rank as PFC and there is no evidence that indicates he was reduced in rank and grade from PFC/E-3 to PV2/E-2 prior to his release from active duty.  It appears an error was made in the preparation of his DD Form 214 in that it shows he was separated in the rank and pay grade of PV2/E-2.  Therefore, it would be appropriate to correct items 4a and 4b of his DD Form 214 to show he was separated in the rank and pay grade of PFC/E-3.

3.  There is no evidence in his OMPF, and he provided none, indicating he received his military pay at the incorrect grade, rate or rank or evidence that confirms his claim that he is entitled to back pay.  Therefore, this portion of his request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending items 4a and 4b of his DD Form 214 to show his rank and pay grade as PFC/E-3.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to establishing his entitlement to back pay as a result of the above 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)                                         AR20100013566



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ABCMR Record of Proceedings (cont)                                         AR20100013566



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