BOARD DATE: 7 February 2012
DOCKET NUMBER: AR20110015363
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/grade as private first class (PFC)/E-3 instead of private (PV1)/E-1.
2. The applicant states he believes and knows his DD Form 214 is in error.
3. The applicant provides no documentary evidence in support of his application.
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 11 November 1974. He was trained in and awarded military occupational specialty (MOS) 05F (Radio/
Teletype Operator).
3. The applicants DA Form 2-1 (Personnel Qualification Record) shows he was advanced to specialist four (SP4)/E-4 on 1 April 1976, which was the highest rank/grade he held while serving on active duty. It further shows he was reduced to PV1/E-1 effective 6 August 1976.
4. The record shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:
* 25 April 1975, for dereliction of duty
* 6 August 1976, for disobeying a lawful order and breaking restriction
* 22 September 1976, for disorderly conduct
5. The record shows the punishment imposed on the applicant as a result of the 6 August 1976 NJP action included a reduction to PV1/E-1. The record is void of documents or orders showing he was ever advanced above the rank/grade of PV1/E-1 subsequent to his 6 August 1976 reduction prior to his release from active duty (REFRAD).
6. On 23 September 1976, a bar to reenlistment was approved on the applicant based on his record of NJP and record of counseling.
7. Orders 73-1, issued by U.S. Army Aberdeen Proving Ground, Maryland, dated 14 October 1976, directed the applicants REFRAD effective 10 November 1976 and transfer to the U.S. Army Reserve (USAR) Control Group (Annual Training). These orders listed the applicants grade as PV1 in the standard name line.
8. On 10 November 1976, the applicant was honorably REFRAD after completing 2 years of total active service. Item 6a (Grade, Rate, or Rank) and item 6b (Pay Grade) of the DD Form 214 he was issued at the time shows the entry PV1 and E-1, respectively.
9. 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. It stipulates the source records and documents for entries on the DD Form 214 are personnel qualification records and documents on file in the Official Military Personnel File (OMPF). The instructions for completing the rank and pay grade entries on the DD Form 214 are to enter the rank and pay grade held on the date of separation.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his DD Form 214 should be corrected to show his rank and pay grade as PFC/E-3 has been carefully considered. However, there is insufficient evidence to support this claim.
2. The evidence of record confirms the applicant was reduced to the rank/grade of PV1/E-1 as a result of NJP action on 6 August 1976. All orders and documents prepared at the time of his separation confirm he held that rank/grade on the date of his REFRAD. As a result, absent evidence indicating he was advanced to PFC/E-3 between 6 August 1976, the date of his reduction, and
10 November 1976, the date of his separation, there is an insufficient evidentiary basis for granting his 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) AR20110015363
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ABCMR Record of Proceedings (cont) AR20110015363
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