IN THE CASE OF:
BOARD DATE: 11 January 2011
DOCKET NUMBER: AR20100014775
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 that his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) be corrected to show he was discharged in pay grade E-4.
2. The applicant states he served in the U.S. Marine Corps Reserve (USMCR) and attained pay grade E-3 before he enlisted in the U.S. Army Reserve (USAR) in pay grade E-3. He goes on to state he was promoted to pay grade E-5 while serving as a cadet in the Simultaneous Membership Program (SMP) and when he was disenrolled from the SMP he was reduced to pay grade E-3. He further states he was discharged from the Idaho Army National Guard in pay grade E-3 without his time in grade as an E-5 and his experience being taken into account. Accordingly, he should have been discharged at least in pay grade E-4.
3. The applicant provides:
* a three-page letter explaining his application
* a copy of his NGB Form 22
* a copy of his enlistment contract
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his record of training and discharge from the USMCR
* a copy of his college transcripts
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 USMCR on 24 April 1996 and served until he enlisted in the Idaho Army National Guard in pay grade E-3 on 6 June 1999. The applicant signed an SMP Agreement and on 1 January 2000 he was promoted to pay grade E-5. The applicant was enrolled in the Reserve Officers' Training Corps (ROTC) Program at Boise State University (BSU) at the time.
3. On 2 October 2000, he disenrolled from the ROTC Program and BSU and moved to Richland, Washington. Accordingly, he was reduced to pay grade E-3, the rank he held before entering the SMP.
4. He was also honorably discharged from the Idaho Army National Guard in pay grade E-3 on 2 October 2000 and he was transferred to the USAR Control Group (Annual Training).
5. He was honorably discharged from the USAR in pay grade E-3 on 17 January 2006. He was residing in Colorado at that time.
6. In the processing of this case a staff advisory opinion was obtained from NGB which recommends that the applicant's request be denied. Officials at NGB opine that the applicant was properly reduced to the pay grade he held at the time he was advanced to pay grade E-5 under the SMP in accordance with the applicable regulations and he was properly discharged in pay grade E-3. The advisory opinion was provided to the applicant for comment and to date no response has been received by the Board staff.
7. National Guard Regulation 600-100 (Commissioned Officers Federal Recognition and Related Personnel Actions) provides that officer trainees will be promoted to sergeant/E-5 if not already serving in pay grade E-5 and are not eligible for further advancement while a member of the SMP. Soldiers who are disenrolled will be reduced to the pay grade attained prior to becoming an officer trainee.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should have been discharged in at least pay grade E-4 because of his time in service and experience has been noted and found to lack merit.
2. The applicant was advanced from pay grade E-3 to E-5 solely due to his enrollment in the SMP. He was in the SMP for a period of only 6 months before he disenrolled and was administratively reduced to the pay grade he held prior to becoming an officer trainee under the SMP in accordance with the applicable regulations.
3. He failed to show through the evidence submitted with his application and the evidence of record that he was improperly or unjustly reduced in rank or that he was entitled to a higher pay grade.
4. 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 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:
1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by him in service to the United States. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ _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.
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ABCMR Record of Proceedings (cont) AR20100014775
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