IN THE CASE OF:
BOARD DATE: 6 September 2011
DOCKET NUMBER: AR20110002164
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, correction of his DD Form 214 (Report of Separation from Active Duty) to show his rank/grade as sergeant first class (SFC)/E-7.
2. The applicant states, in effect, he was serving in a duty position authorized a Soldier in the rank of SFC.
3. The applicant provides:
* a DA Form 2496 (Disposition Form (DF), subject: Announcement of Duty Appointment/Assignment, dated 7 July 1979
* a statement from the Department of Veterans Affairs, Phoenix, AZ, dated 27 May 2010
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 applicants 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 applicants 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 2 June 1975. He completed training and he was awarded military occupational specialty 31E (field radio repairman). He was promoted to the rank of specialist five (SP5)/E-5 on
27 November 1977.
3. The applicant's Enlisted Evaluation Report (EER) for the period ending May 1978 show his grade as E-5.
4. He was honorably released from active duty on 1 June 1978 at the completion of required active service. He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation. The DD Form 214 he was issued shows his rank/grade as SP5/E-5.
5. On 28 June 1978, he accepted assignment to a USAR unit.
6. On 7 July 1979, as a member of his USAR unit, he was assigned to a duty position authorized a Soldier in the rank/grade of SFC/E-7.
7. Orders 11-1, issued by Headquarters, 309th Army Security Agency Battalion, General George S. Patton Jr. USAR Center, Bell, CA, dated 27 July 1980, promoted the applicant to staff sergeant (SSG)/E-6.
8. Orders 126-1462, issued by Headquarters, Sixth U/S. Army, Presidio of San Francisco, CA, darted 25 June 1981, honorably discharged the applicant from the USAR effective 14 April 1981 in the rank of SSG.
9. Army Regulation 635-5 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. In pertinent part, it states the DD Form 214 is a synopsis of the Soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
DISCUSSION AND CONCLUSIONS:
1. A DD Form 214 records the condition which existed at the time it is issued. It does not record future events. In this case the applicant was serving in pay grade E-5 when he was released from active duty. As such, his DD Form 214 appropriately reflects his rank/grade of SP5/E-5 at the expiration of term of Regular Army service.
2. While he was later assigned to a position in his USAR unit which was authorized a Soldier in the rank/grade of SFC/E-7, this does not mean he was promoted to that rank. Assignments and promotions are two entirely different matters.
3. Orders confirm the applicant was promoted to SSG/E-6 while assigned to his USAR unit, which is the highest rank/grade he attained during his USAR service.
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) AR20110002164
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