IN THE CASE OF:	  

		BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110001195 


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 the following items on his DD Form 214 (Certificate of Release or Discharge from Active Duty):

* item 4a (Grade, Rate or Rank)
* item 4b (Pay Grade)
* item 14 (Military Education)  

2.  He states, in effect, he received nonjudicial punishment (NJP) in January 1998 and he was reduced to private (PVT)/E-1.  However, his rank was restored to private first class (PFC)/E-3 but it is not reflected on his DD Form 214.  

3.  He adds, in effect, that he completed the training requirements for military occupational specialty (MOS) 92A (Automated Logistics Specialist), and graduated from advanced individual training (AIT), but he was never awarded the MOS despite perfect scores on the Army Physical Fitness Test during basic training and AIT.

4.  He provides a copy of his DD Form 214.   

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.  His military personnel record shows he enlisted in the Regular Army on 
4 February 1997.  

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows in:

	a.  Item 17 (Civilian Education and Military Schools) he completed
13-week, Automated Logistics Specialist Course for MOS 92A in 1997;

	b.  Item 18 (Appointments and Reductions) he was initially advanced to the rank of PFC/E-3 on 4 February 1997.  It does not show his reduction to PVT/E-1; and

	c.  Item 35 (Current and Previous Assignments) he completed basic training and AIT and he was permanently being assigned to Fort Bliss, TX.

4.  His record contains Orders 246-00259, dated 3 September 1997, reassigning him to Fort Bliss, TX.  His record also contain Orders 273-00202, dated 
30 September 1997, revoking the previous orders.  

5.  On 29 January 1998, he was administered NJP for going absent without leave (AWOL) from 2 to 20 January 1998.  The punishment imposed included reduction to grade PVT/E-1, effective 2 February 1998. 

6.  A 28 May 1998 DA Form 4187 contains the following entries in:

* Item 5 (Grade or Rank/primary MOS (PMOS)/area of concentration (AOC) shows PV2/92A1O
* Item 8 (Request the Following Action) shows Advancement to PV2
* Section IV (Remarks) shows Advancement to PFC

7.  His record contains a narrative summary for a Medical Evaluation Board (MEB), dated 11 February 1998, which showed he was placed on permanent profile after several medical treatments and surgery for pain in his left thigh.  His symptoms precluded him from completing the physical requirements to graduate from AIT.  On 18 June 1998, he was evaluated by the Physical Evaluation Board (PEB).  The PEB determined he had a medical condition that existed prior to service and he was unfit for duty.  

8.  Accordingly, on 26 August 1998, he was honorably discharged by reason of disability, existed prior to service.  His DD Form 214 shows the following entries:

* Item 4a – PV1
* Item 4b – E-1
* Item 12h (Effective Date of Pay Grade) – 1998 02 02
* Item 14 – None/Nothing Follows 

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides the Army's policy for the promotion and reduction of enlisted personnel.  Paragraph 1-20 contains guidance on promotion of Soldiers pending referral to an MOS/medical retention board (MMRB), MEB, or PEB.  It states Soldiers pending referral to an MMRB, MEB, or PEB will not be denied promotion if already promotable on the basis of medical disqualification if they are otherwise qualified for promotion.

10.  Chapter 2 of Army Regulation 600-8-19 provides guidance on decentralized promotions to PV2/E-2, PFC/E-3, and SPC/E-4.  It states Solders will be promoted only in their primary PMOS or a career-progression MOS.  There are no provisions for promoting a Soldier to PFC/E-3 or SPC/E-4 who does not hold an MOS.  Commanders will either recommend or deny promotions on the Automated Advancement Report provided the Soldier is otherwise qualified and promotions will be automatically made via the Total Army Personnel Data Base.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item instructions for completing the DD Form 214.  It states, in pertinent part, that the entry in Item 4a will be the rank the member holds on the date of separation.  It also states to enter training courses successfully completed during the period of service covered by the DD Form 214 in item 14.  This information is to assist the member after separation in job placement and counseling; therefore, do not list training courses for combat skills.





DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows he was reduced to PVT/E-1 on 2 February 1998 as a result of NJP.  His record is absent evidence and he has not provided sufficient evidence to show he was advanced to PV2/E-2, which is the next grade in the normal line of progression for advancement to PFC/E-3.  

2.  The DA Form 4187, dated 28 May 1998, appears to contain an error.  At the time the DA Form 4187 was prepared the applicant's rank was PVT/E-1.  However, the DA Form 4187 shows the action to be taken was advancement to PV2/E-2.  Absent evidence to show that he was previously advanced to PV2/E-2 after his reduction to PVT/E-1 or that he was awarded a valid MOS, there was no authority for the commander to advance him to the rank of PFC/E-3.  As a result, the DA Form 4187 is accepted as showing he was being advanced to PV2/E-2.  Therefore this would be the appropriate rank to enter on his DD Form 214.  He is entitled to correction of items 4a, 4b and 12h of his DD Form 214. 

3.  The applicant's MEB results indicate that his physical condition prevented him from completing the physical requirements to successfully complete AIT for MOS 92A.  As a result, item 14 of his DD Form 214 is correct as shown.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 as follows:

* item 4a – deleting PV1 and adding PV2
* item 4b – deleting E-1 and adding E-2
* item 12h – deleting 1998 02 02 and adding "1998 06 11"  


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting item 14 of his 
DD Form 214 to show he successfully completed AIT and he was awarded MOS 92A or that he was discharged in the rank of PFC/E-3.




      _______ _  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)                                         AR20110001195



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ABCMR Record of Proceedings (cont)                                         AR20110001195



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