IN THE CASE OF:
BOARD DATE: 29 December 2010
DOCKET NUMBER: AR20100016776
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 he was retired by reason of physical disability in the pay grade of E-3.
2. The applicant states he had enough time in grade as an E-2 to be automatically promoted to the pay grade of E-3. He states that he recently received a copy of his records and he found out that his rank is recorded incorrectly therein.
3. The applicant provides:
* DD Form 214 dated 28 May 1980
* DA Form 3713 (Data for Retired Pay) dated 1 December 1981
* DA Form 2-1 (Personnel Qualification Record)
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. On 24 April 1977, the applicant enlisted in the Regular Army for 4 years, in the pay grade of E-1. He successfully completed training as a wheel vehicle mechanic and he was advanced to the pay grade of E-2, effective 19 November 1979.
3. He was honorably retired by reason of physical disability (temporary), effective 28 May 1980. The DD Form 214 he received shows he was retired in the pay grade of E-2.
4. A review of the applicants official military records fails to reveal orders, personnel actions, or any other evidence showing that he was ever advanced in grade beyond the pay grade of E-2.
5. Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service, as it exists on the date of release from active duty, discharge, or retirement.
6. Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 7-10, then in effect, stated that normal time in service (TIS) criterion for promotion to the pay grade of E-3 was established as 12 months. Normal time in grade (TIMIG) criterion was 4 months. Up to one half of TIS and TIMG requirements could be waived by the promotion authority. In recognition of outstanding performance, local commanders were authorized to promote to the pay grade of E-3 individuals with at least 6 months but less than 12 months TIS and at least 2 months TIMIG with the constraint that promotions would not be made which would cause more than 20 percent of the command's assigned and attached E-3 strength to have less than 12 months service. Promotion to the pay grade of E-3 was not mandatory. These provisions applied equally to personnel assigned to medical holding facilities or school detachments. Orders were to be issued in accordance with Army Regulation 310-10 (Military Orders).
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions have been noted. However, there is no evidence in his record, nor has he submitted any evidence showing he was ever advanced beyond the pay grade of E-2.
2. His contention that he had enough time in grade as an E-2 to be automatically advanced to the pay grade of E-3 has been considered. Still the applicable regulation then in effect stated that promotion to the pay grade was not mandatory and promotion was at the discretion of the commander. Orders were to be issued in accordance with Army Regulation 310-10.
3. His records show he was retired by reason of physical disability (temporary) in the pay grade of E-2. This information was properly annotated on his DD Form 214 and he has provided no evidence to show that the pay grade shown on his DD Form 214 is incorrect. The fact that he now believes he should have been retired in a higher pay grade is not a sufficient justification for granting the requested relief.
4. In view of the foregoing, the applicants request should be denied.
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) AR20100016776
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ABCMR Record of Proceedings (cont) AR20100016776
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