BOARD DATE:	  29 September 2011

		DOCKET NUMBER:  AR20110006469 


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.  In an application dated 1 April 2011, the applicant requests to be retired from the Army as a sergeant (SGT)/E-5 or as a warrant officer 1 (WO1).  In an application dated 11 August 2011, he requests to be retired as "a staff sergeant level E-6/E-8 or higher."

2.  He states, in effect, he needs a higher rank to facilitate his access to U.S. military installations.  He believes he should have been retired as a SGT/E-5 or WO1 because he served 18 years of active duty and has a 4-year college degree.  He also believes he has been unjustly discriminated against because he is a disabled veteran, and he retired from the U.S. Postal Service (USPS) due to his mental state.  He states he has been barred from using the gyms on a U.S. Coast Guard (USCG) installation, which he believes is unjust discrimination.  He states he is a 100 percent disabled veteran.

3.  He provides correspondence to him from the Department of Veterans Affairs (DVA), a DD Form 214 (Certificate of Release or Discharge from Active Duty), a letter from the USCG barring him from entering Coast Guard Air Station Miami, a photocopy of his Department of Defense/Uniformed Service Identification and Privilege Card, a photocopy of his decorations, and the Record of Proceedings for Army Board for Correction of Military Records (ABCMR) Docket Number AR2003092278.




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 (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 ABCMR has no jurisdiction over records maintained by the USCG or the USPS.  The applicant's issues with these agencies will not be discussed further in these proceedings.

3.  Following periods of service in the U.S. Navy Reserve and U.S. Navy, on 23 February 2000, he enlisted in the Regular Army as a specialist (SPC)/E-4.  

4.  On 28 March 2002, he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty, being disrespectful in language toward a noncommissioned officer, and wrongfully and without authority wearing the insignia of a SGT/E-5 on his uniform.  His punishment included reduction to the grade of private first class (PFC)/E-3.   

5.  On 18 November 2002, he was honorably discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13 (Personality Disorder).  Items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) of his DD Form 214 shows he held the rank/grade of PFC/E-3, and item 12h (Effective Date of Pay Grade) shows the effective date of his pay grade was 28 April 2002.  He completed 9 years, 6 months, and 15 days of active military service and 8 years, 5 months, and 13 days of inactive service.  

6.  The record is void of documentation showing he was promoted to SGT/E-5 or pay grade E-6 or higher.  The record is also void of documentation showing he was appointed as a warrant officer.

7.  The Record of Proceedings for ABCMR Docket Number AR2003092278, dated 25 March 2004, shows his request to be retired from the Army by reason of physical disability was denied.  

8.  The DVA correspondence he provides shows he was granted a 100 percent service-connected disability rating. 

9.  The Department of Defense/Uniformed Service Identification and Privilege Card he provides shows an "indefinite" expiration date, shows his status/grade is "DAVPRM/E-3" and shows he is authorized patronage of exchanges; morale, welfare, and recreation (MWR); and commissaries.  In notes under the photocopy of his identification card, he indicates "indefinite" means "eligible to retire the [sic] U.S. military with rank and privileges."

10.  Army Regulation 600-8-14 (Identification Cards for Members of the Uniformed Services, Their Eligible Family Members, and Other Eligible Personnel) provides instructions for the preparation and issue of the Department of Defense/Uniformed Service Identification and Privilege Card.  The regulation states, in pertinent part, that honorably discharged veterans who are not entitled to retired pay and who have received a 100 percent service-connected permanent disability rating from the DVA are entitled to an identification card with an "indefinite" expiration date giving them access to military installations to patronize exchanges, MWR facilities, and commissaries only.  The regulation states the identification cards issued to these individuals will show the status "DAVPRM" and the grade held at the time of discharge.

11.  Title 10, U.S. Code, section 3914, provides that an enlisted member of the Army who has at least 20, but less than 30 years of active service, may, upon his request, be retired.

12.  Title 10, U.S. Code, section 12731, provides that a member of the Active Reserves or National Guard is entitled, upon application, to retired pay if the person meets the following minimum requirements:  be at least 60 years of age; have performed at least 20 years of qualifying service computed under section 12732, Title 10, U.S. Code; have performed the last 8 years of qualifying service while a member of the Active Reserve; and not be entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to be retired as a SGT/E-5 or WO1, or as an "E-6/E-8 or higher."  

2.  He did not complete the 20 years of service for retirement required by law.  

3.  His Department of Defense/Uniformed Service Identification and Privilege Card shows the status "DAVPRM," which clearly indicates his possession of the card and access to privileges is based on his 100 percent service-connected disability rating.  Because his disability is considered permanent, the card carries an "indefinite" expiration date.  The identification card in no way implies or states he retired from military service.  

4.  He enlisted as a SPC/E-4, which was the highest Army rank/grade he held.  He was reduced to PFC/E-3 by NJP, and the record shows he was a PFC/E-3 at the time of his discharge.  This grade is correctly shown on his Department of Defense/Uniformed Service Identification and Privilege Card.  

5.  In view of the foregoing, he is not entitled to the relief he requests.  

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)                                         AR20110006469





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ABCMR Record of Proceedings (cont)                                         AR20110006469



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