IN THE CASE OF:	  

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100018847 


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, that his DD Form 214 (Report of Separation from Active Duty) be corrected to show he was released from initial active duty for training (IADT) in the rank of specialist four (SP4) with a date of rank of 5 April 1978 or earlier.

2.  The applicant states he was a college graduate when he joined the U.S. Army Reserve (USAR) and should have been advanced to the rank of SP4 on 5 April 1978 when he completed his IADT or earlier.

3.  The applicant provides a copy of his DD Form 214 and a written explanation of his request on the back of his application.

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 was a college graduate when he enlisted in the USAR in Newark, New Jersey, in pay grade E-3 on 7 November 1977.  His grade determination was made in accordance with Army Regulation 140-111 (U.S. Army Reserve Reenlistment Program).

3.  He was ordered to IADT on 23 November 1977 at Fort Dix, New Jersey, where he completed basic training and advanced individual training as an illustrator.

4.  He was released from active duty (REFRAD) to the control of his USAR unit in pay grade E-3 on 5 April 1978.  He was advanced to pay grade E-4 on 4 October 1978.

5.  He was discharged from the USAR on 6 November 1980 for the purpose of immediate reenlistment.  He reenlisted on 7 November 1980 for a period of 6 years.  On 3 March 1987, he was honorably discharged from the USAR in the rank of SP4.

6.  On 7 August 2001 in response to a letter from the applicant to the President of the United States, the Chief, Field Systems Division, Total Army Personnel Command, dispatched a letter to the applicant informing him that while his date of rank for promotion was incorrect, his DD Form 214 would not be corrected to reflect that he was REFRAD in the rank of SP4 because the applicable regulation regarding his advancement did not allow him to be advanced to pay grade E-4 until after completion of IADT.  He was provided an amendment to his promotion and military occupational specialty orders advancing him to pay grade E-4 effective 6 April 1978 and a DD Form 827 (Application for Arrears in Pay).

7.  A review of his official records failed to reveal a recommendation for advancement of the applicant to pay grade E-4 prior to his actual advancement on 4 October 1978.

8.  Army Regulation 140-111, table 2-1, provides the enlistment pay grades for personnel without prior service.  It provides that a person who had successfully completed an accredited degree-producing college program of 4 years in duration may enlist in pay grade E-3 and may be advanced to pay grade E-4 upon successful completion of 4 months of service, completion of IADT, and a recommendation by the unit commander.

9.  Army Regulation 635-5 (Personnel Documents) serves as the authority for the preparation of the DD Form 214.  It provides that the DD Form 214 will be prepared to reflect information that is in effect at the time of separation.  Events that occur subsequent to the dates covered by the DD Form 214 will not be retroactively entered on that form.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been advanced to pay grade E-4 prior to or on the date he completed IADT on 5 April 1978 has been noted and is found to lack merit.

2.  Notwithstanding the fact that officials at the Total Army Personnel Command amended his orders to show he was advanced to pay grade E-4 the day after he completed IADT, there is no evidence to show a commander's recommendation was ever made in his case.

3.  In any event, the applicant was not then nor is he now entitled to have his DD Form 214 corrected to reflect that he was advanced to pay grade E-4 at the time he was REFRAD on 5 April 1978.

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 has failed to submit evidence that would satisfy the aforementioned 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 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)                                         AR20100018847



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018847



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1