IN THE CASE OF:	  

		BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100025499 


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 records to show his date of discharge as 30 June 2004 and his rank at discharge as sergeant (SGT)/E-5.  

2.  He states he was a SGT/E-5 at the time of his discharge in 2004.  

3.  He provides a copy of his DD Form 2 (Reserve-Armed Forces of the United States, Geneva Conventions Identification Card and a self-authored statement.

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 served prior service in the in the U.S. Navy and U.S. Navy Reserve.  He enlisted in the U.S. Army Reserve on 24 July 1998 for a period of three years.  
3.  He was promoted to specialist four (SP4)/E-4 with an effective date and date of rank of 26 July 1998.  

4.  His service record contains a DA Form 4187 (Personnel Action), dated 10 September 1999, which shows he was laterally appointed to corporal (CPL)/E-4, effective 1 September 1999.  

5.  He was ordered to active duty for training on 8 October 1999 and was released from active duty on 28 January 2000.  On the following day, he was transferred to his Reserve unit.  

6.  Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) of his DD Form 214 for the period ending 28 January 2000 show his rank and pay grade as CPL/E-4.  Item 12h (Effective Date of Pay Grade) shows the effective date of his pay grade as 1 September 1999 (this date should be 26 July 1998 instead of the date he was laterally appointed to CPL on 1 September 1999).  

7.  On 26 June 2001 and 15 July 2002, he extended his enlistment of 24 July 1998 (1 year and 6 months) and his established new expiration of term of service was 23 January 2003.  

8.  Orders published on 4 November 2003 released him from his assignment and reassigned him to the U.S. Army Reserve Control Group (Reinforcement), effective 4 November 2003.  These orders show his rank as CPL.  

9.  Orders published on 20 November 2003 discharged him from the U.S. Army Reserve under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve - Enlisted Administrative Separations), effective 20 November 2003.  These orders show he was discharged in the rank as CPL.  

10.  He provided a self-authored statement in support of his claim.  He stated he:

* is currently a full-time college student
* became aware of error when the Financial Aid Office at the college informed him that his G.I. Bill was about to expire 
* has tried to contact several former Soldiers to provide affidavits to support his request

11.  He provided a copy of his DD Form 2, issued on 11 January 2003.  This document shows his rank/pay grade as SP4/E-4 and the expiration date as 30 June 2004.  

12.  Information obtained from the Defense Finance and Accounting Service revealed his pay grade was E-4 from 26 July 1998 through the date of his discharge on 3 November 2003.  

13.  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.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In pertinent part, it directed that the grade in which enlisted personnel were serving at the time of separation would be entered in item 4a and the pay grade will be entered in item 4b.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant enlisted in the U.S. Army Reserve on 24 July 1998 and continued to serve until he was discharged on 4 November 2003.  

2.  He was issued a properly constituted DD Form 214 for his period of active duty training.  

3.  The date on his identification card is the expiration date and not the date he was discharged.  His service record is void of evidence which shows he was discharged on 30 June 2004.  Therefore, there is insufficient evidence to show he was discharged on this date.  

4.  He was promoted to SP4 on 26 July 1998 and was laterally appointed to CPL on 1 September 1999.  His service record is void of evidence which shows he was ever promoted to SGT prior to his discharge.  Therefore, there is insufficient evidence on which to correct his records to show he was discharged as a SGT in 2004.  

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)                                         AR20100025499





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ABCMR Record of Proceedings (cont)                                         AR20100025499



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