BOARD DATE:	25 October 2011

		DOCKET NUMBER:  AR20110001815


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 Forms 214 (Certificate of Release or Discharge from Active Duty) to show his rank/grade as staff sergeant (SSG)/
E-6.

2.  The applicant states his DD Forms 214 show his pay grade as E-5, but he has a DD Form 256A (Honorable Discharge Certificate) and DA Form 87 (Department of the Army Certificate of Training), that shows he was a SSG.  He further claims he has never been demoted or had an administrative reduction.

3.  The applicant provides copies of his:

* DD Form 214 for the period ending 7 October 1983
* DD Form 214 for the period ending 31 January 1989
* DD Form 214 for the period ending 30 September 1990
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 26 June 1996
* DA Form 256A, dated 15 June 1980

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 28 April 1969.  He completed training and he was awarded military occupational specialty 94B (Cook).  

3.  The applicant provided an Honorable Discharge Certificate, dated 15 June 1980, showing he was an SSG,

4.  The applicant remained on active duty until 7 October 1983.  

5.  The applicant’s DA Form 2-1 (Personnel Qualification Record - Part II) shows in item 18 (Appointments and Reductions) that he was promoted to specialist five (SP5)/E-5, effective 1 June 1972, and promoted to SSG effective 13 April 1977.  However, that SSG entry was lined through.  Three additional entries of SP5 are entered: promoted to SP5 effective 4 November 1982 (lined through), promoted to SP5 effective 1 January 1982 (lined through), and promoted to SP5 effective 24 November 1981

6.  The DD Form 214 he was issued on 7 October 1983 shows he was discharged at the expiration of his term of service in the rank/grade of SP5/E-5, due to the expiration of his term of service.  His effective date of pay grade is shown as 24 November 1981.

7.  He enlisted in the Idaho Army National Guard (IDARNG) on 8 February 1985.  
He was ordered active duty for annual training on 3 October 1988.  He was released from active duty on 31 January 1989 at the termination of his annual training status.  The DD Form 214 he was issued for this period of service shows his rank/grade as sergeant (SGT)/E-5 with an effective date of pay grade as
24 November 1981.

8.  He was again ordered to active duty for annual training on 5 April 1990.  He was released from active duty on 30 September 1990 at the termination of his 


annual training status.  The DD Form 214 he was issued for this period of service shows his rank/grade as SGT/E-5 with an effective date of pay grade as 
24 November 1981.

9.  The applicant’s NGB Form 22 shows that effective 26 June 1996, he was transferred to the Retired Reserve, St Louis, MO.  Items 5a (Rank) and 5b (Pay Grade) show the entry SGT and E-5, respectively.  Item 6 (Date of Rank) shows the entry 24 November 1981.

10.  The Chief, Debt and claims Management Branch, Defense Finance and Accounting Service (DFAS) verified the applicant’s retirement records indicate he is an SSG.

11.  His record contains Orders: PO3-941901, issued by the U.S. Army Human Resources Command (HRC), St Louis, MO, dated 3 March 2011, that show he was retired and placed on the Retired list effective 20 January 2011 in the retired rank of SSG.

12.  Army Regulation 635-5 (Separation Documents) provides detailed instructions for completing separation documents, including the DD Form 214.  It provides that the DD Form 14 is a summary of a Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement or discharge.

	a.  The DD Form 214 is not intended to have any legal effect on termination of a Soldier's service.

	b.  Item 5a (Grade, Rate or Rank) and Item 5b (Pay Grade) are to contain entries showing the Soldier's active duty rank/grade at the time of separation.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Forms 214 should be corrected to show his rank/grade as SSG/E-6 because he has an honorable discharge certificate 


showing he was an SSG and he has never been demoted or administratively reduced.

2.  The evidence shows:

	a.  he presented an Honorable Discharge Certificate, dated 15 June 1980, showing he was an SSG, 

	b.  he was placed on the retired list on 20 January 2011 in the retired grade of SSG, and

	c.  a lined through entry on his DA Form 2-1 that shows he was promoted to the rank of SSG effective 13 April 1977, with a second SP5 entry with an effective date of 24 November 1981.  That entry indicates a reduction from E-6 to E-6 on 24 November 1981.

3.  It is acknowledged that his retirement records indicate he is an SSG.

4.  However, all his DD Forms 214 and his NGB Form 22 show him as a       SGT/E-5 with an effective date of pay grade/date of rank of 24 November 1981.

5.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

6.  In view of the foregoing, there is insufficient evidence to grant the applicant's 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 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)                                         AR20100020326



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ABCMR Record of Proceedings (cont)                                         AR20110001815



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