IN THE CASE OF:
BOARD DATE: 21 June 2011
DOCKET NUMBER: AR20100028295
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 27 November 2007 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank and pay grade as staff sergeant (SSG)/E-6.
2. He states that item 18 (Remarks) of his DD Form 214 shows he had an approved grade determination to the rank of SSG and his severance pay would be calculated accordingly.
3. He provides his DD Form 214; Orders 3-1, dated 4 May 1993; and Orders 332-0258, dated 28 November 2007.
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 Regular Army on 25 November 1980. He was honorably released on 16 November 1984 after serving 3 years, 11 months, and 17 days of net active duty. On 17 November 1984, he enlisted in the U.S. Army Reserve (USAR).
3. Orders 3-1, dated 4 May 1993, show he was promoted to SSG/E-6 with an effective date and date of rank of 4 May 1993.
4. Orders 02-319-00021, dated 15 November 2002, show he was reduced from SSG to sergeant (SGT)/E-5 effective 10 October 1989. Additionally, a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) shows he was reduced from SGT/E-5 to specialist (SPC)/E-4 on 11 February 2004.
5. Orders 332-0258, dated 28 November 2007, show he was reassigned to the U.S. Army Transition Point for transition processing and discharge. His rank is shown as SPC.
6. His DD Form 214 shows his rank/pay grade as SPC/E-4. Item 18 of this form shows he had an approved grade determination to the rank of SSG/E-6 and stated that his severance pay would be calculated based on the rank and pay grade of SSG/E-6. On 27 November 2007, he was honorably discharged for disability with severance pay.
7. Army Regulation 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army. The AGDRB will consider each case on its own merits. Generally, determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability.
8. Army Regulation 635-5 (Separation Documents) states that the grade in which the enlisted Soldier was serving at the time of separation will be entered in item 4a (Grade, Rate, or Rank) and the pay grade will be entered in item 4b (Pay Grade).
DISCUSSION AND CONCLUSIONS:
1. The fact that the AGDRB approved a grade determination for the applicant to the rank/pay grade of SSG/E-6 based on his overall service for the purpose of determining his disability severance pay, is not sufficient justification to change his rank/grade on his DD Form 214. The evidence of record shows he was reduced in rank on two separate occasions from SSG/E-6 to SGT/E-5 and then to SPC/E-4 prior to his separation from the USAR. He has provided no evidence to prove otherwise.
2. In view of the foregoing, there is no basis for granting his requested relief.
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) AR20100028295
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ABCMR Record of Proceedings (cont) AR20100028295
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