IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110006796 


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 Form 214 (Report of Separation from Active Duty) to show his rank/pay grade as private (PV2)/E-2 instead of private (PVT)/E-1.

2.  The applicant states his DD Form 214 is in error.

3.  The applicant provides:

* DD Form 214
* DA Form 2496 (Disposition Form), subject:  Unfulfilled Enlistment Commitment
* DA Form 3349 (Physical Profile Record)
* enlistment commitment statement of understanding
* Special Orders Number 176
* DD Form 4 (Enlistment Contract – Armed Forces of the United States)

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's records show he enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) in the rank/pay grade of PVT/E-1 on 19 February 1974.

3.  He was discharged from the USAR (DEP) on 9 June 1974 and enlisted in the Regular Army in the rank/pay grade of PVT/E-1 on 10 June 1974.

4.  Special Orders Number 117 issued by the Armed Forces Examining and Entrance Station, Los Angeles, CA, on 10 June 1974 ordered him to Fort Polk, LA, for training.  The orders listed his rank/pay grade as a PVT/E-1.

5.  Special Orders Number 119 issued by Headquarters, U.S. Army Reception Station, Fort Polk, LA, on 18 June 1974 ordered him assigned to Company B, 1st Battalion, 1st Training Brigade, for completion of basic combat training.  The orders listed his rank/pay grade as a PVT/E-1.

6.  Special Orders Number 176 issued by Headquarters, U.S. Army Training Center Infantry and Fort Polk, Fort Polk, LA, on 25 June 1974 ordered him assigned to the Student Center, Fort Polk Academy, for specialized training.  The orders listed his rank/pay grade as a PVT/E-1.

7.  On 19 August 1974, his immediate commander requested his discharge from the Army by reason of unfulfilled enlistment commitment under the provisions of paragraph 5-3 of Army Regulation 635-200 (Personnel Separations).  The DA Form 2496 listed his rank as PV2.

8.  Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows the highest rank/pay grade he held was PVT/E-1.

9.  On 19 September 1974, Headquarters, U.S. Army Training Center Infantry and Fort Polk, Fort Polk, LA, published Special Orders Number 262 ordering his discharge from the Army effective 20 September 1974.  The orders listed his rank/pay grade as PVT/E-1.

10.  He was honorably discharged on 20 September 1974.  His DD Form 214 shows he completed 3 months and 11 days of creditable active service.  Items 6a (Grade, Rate or Rank), 6b (Pay Grade), and 7 (Date of Rank) of his DD Form 214 show the entries "PVT," "E-1," and "19 February 1974," respectively.

11.  His records do not contain any official documents advancing him to PV2/E-2.

12.  He submitted a DA Form 3349, dated 9 August 1974, which listed his pay grade as E-2 and a enlisted commitment statement of understanding, dated 13 August 1974, which also listed his pay grade as E-2.

13.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures normal advancement to pay grade E-2 required 4 months of time in service.

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contained guidance on the preparation of the DD Form 214.  It stated that items 6a and 6b would show the active duty rank and pay grade at time of the Soldier's separation, the rank would be taken from the Soldier's promotion/reduction orders, and item 7 shows the date of rank.

15.  Army Regulation 635-200 provides for the separation of enlisted members.  The version of the regulation in effect at the time provided for the separation of enlisted Soldiers in cases of erroneous or unfulfilled commitments discovered after initial assignment.  When it is determined by the separation authority that the enlistment was erroneous and/or cannot be fulfilled, separation may be requested by the member.  Non-prior service Regular Army personnel serving on their first enlistment may request immediate discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the USAR on 19 February 1974 in the rank/pay grade of PVT/E-1.  He later enlisted in the Regular Army on 10 June 1974 in that rank and pay grade.  He was recycled between training companies during basic combat training and he was ultimately discharged from the Army on 20 September 1974.  He completed 3 months and 11 days of creditable active service.

2.  His official records contain two documents that listed his rank as PV2; however, no official documents exist to show he was advanced to PV2/E-2 and the date of such advancement.  Normal advancement required completion of 4 months of time in service.  Additionally, having been recycled during basic combat training, it is reasonable to presume he did not receive an accelerated advancement to E-2.  There is insufficient evidence to show his rank/pay grade as PV2/E-2.

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)                                         AR20110006796



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ABCMR Record of Proceedings (cont)                                         AR20110006796



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