IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110018224 


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 her records to show she held the rank of specialist four (SP4)/pay grade E-4 from 1 June 1981 through the date of her release from active duty (REFRAD) and payment of all pay and allowances due as a result of the correction.

2.  The applicant states she experienced a traumatic incident during basic training on 10-11 August 1979.  After completing training, she was assigned overseas in Germany.

	a.  In April 1981, she was told she would receive an Article 15 and reduction in grade for repeatedly asking for permission to leave work.  She explained that her requests were based on a personal matter that she couldn't articulate to her supervisor.

	b.  She received an Article 15 on 27 April 1981 and was reduced to private (PV2)/pay grade E-2.  She departed on leave that same day.

	c.  When she returned from leave, a copy of the Article 15 could not be located in the unit.  Her company commander promoted her to SP4 (E-4), but finance would not pay her because of a remark on her April Leave and Earnings Statement (LES).

	d.  She departed Germany prior to completing her overseas tour due to a death in her family.  She was assured by her first sergeant that her records would be straightened out; however, this turned out to be untrue.
	e.  Since she was REFRAD, she has attempted to obtain copies of her records, but there are only documents from the last 6 months that she spent at Fort Benning, GA.

	f.  She submitted a DD Form 827 (Applicant for Arrears in Pay) to the Defense Finance and Accounting Service, but it was never acknowledged.  She concludes that the punishment she received was too harsh and her unsuccessful efforts to obtain money that was incorrectly withheld from her pay constitutes unjust punishment.

3.  The applicant provides, in support of her request, an extract from her diary, her promotion and reassignment orders, LESs, and separation document.

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 31 July 1979.  She was awarded military occupational specialty 94B (Food Service Specialist).

3.  378th Personnel Service Company (Germany), Orders 152-85, dated 1 June 1981, promoted the applicant from private first class (PFC/pay grade E-3 to SP4 (E-4) effective and with a date of rank of 1 June 1981.  The orders state the promotion is not valid and will be revoked if she is not in a promotable status on the effective date of promotion.

4.  378th Personnel Service Company (Germany), Orders 244-11, dated
1 September 1981, as amended by Orders 288-11, dated 15 October 1981, reassigned the applicant to Headquarters Command, U.S. Army Infantry Center, Fort Benning, GA with a reporting date of 20 November 1981.  The orders show it was an emergency permanent change of station based on the death of the applicant's loco parentis grandfather.  She was authorized to depart Germany on 14 October 1981.
5.  U.S. Army Infantry Center, Fort Benning, GA, Orders 162-351, dated 11 June 1982, revoked 378th Personnel Service Company (Germany), Orders 152-85, dated 1 June 1981, pertaining to the promotion of the applicant.  The authority cited for revoking the promotion order was Army Regulation 600-200 (Enlisted Personnel Management), paragraph 7-6(e), based on non-promotable status due to reduction to grade E-2 by Article 15, dated 27 April 1981.

6.  U.S. Army Infantry Center, Fort Benning, GA, Orders 161-349, dated 10 June 1982, reassigned the applicant to the U.S. Army Separation Transfer Point, Fort Benning, GA, for separation processing with a reporting date of 30 July 1982. The orders show her rank at the time was PV2 (E-2).

7.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty).shows she was honorably REFRAD on 30 July 1982 in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 2, based on completion of required service.  She completed 3 years of active service that included 1 year, 10 months, and 28 days of foreign service.  It also shows in:

	a.  item 4a (Grade, Rate or Rank):  PV2;

	b.  item 4b (Pay Grade):  E2;

	c.  item 12 (Record of Service), block h (Effective Date of Pay Grade):
27 April 1981; and

	d.  item 21 (Signature of Member Being Separated):  the applicant placed her signature on the document

8.  In support of her request, the applicant provides the following documents:

	a.  A 4-page diary entry pertaining to the applicant that was made on
11 August 1979 for the evening of 9 August 1979.  It shows the applicant and several other Soldiers went to the United Services Organization lounge that evening.

	 	(1)  The applicant wrote, "On the way back to the barracks, I started feeling dizzy and sick from the beer and medication that I had forgotten that I had took [sic] earlier."

	 	(2)  When they returned to the barracks, the applicant and several of the Soldiers experienced physical reactions that required medical attention.

	 	(3)  The applicant was taken to the emergency room where she was treated.  She was released several hours later to return to her barracks.

	 	(4)  She describes the evening as "the strangest night I've ever had."

	b.  Twenty (20) of the applicant's DA Forms 3686 (LESs) covering the period from 1 May 1980 to 30 June 1982.

	 	(1)  The April 1981 LES shows in item 3 (Pay Grade):  "E-3".  (Item 39 (Remarks) does not contain any reference to the applicant's grade or collections.)

	 	(2)  The May 1981 LES was not provided.

	 	(3)  The June 1981 through June 1982 LESs show in item 3:  "E2".

	 	(4)  The July and October 1981, and May and July 1982 LESs were not provided.

	 	(5)  None of the LESs show any entries in the Remarks section that refer to collections based on overpayment.  (The applicant's March 1981, February and June 1982 LESs show collections for her education savings.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her records should be corrected to show she held the rank of SP4 (E-4) from 1 June 1981 through the date she was REFRAD
(30 July 1982) and payment of all pay and allowances due as a result of the correction.

2.  Records show the applicant received an Article 15 on 27 April 1981.  Her punishment was reduction from PFC (E-3) to PV2 (E-2).

3.  Special orders erroneously promoted the applicant from PFC (E-3) to SP4
(E-4) effective 1 June 1981.  However, the applicant was ineligible for promotion from grade E-3 to grade E-4 because she had been reduced to grade E-2 on
27 April 1981.  Thus, she was in a non-promotable status and the promotion order was revoked.

4.  The applicant's LESs show she was paid in pay grade E-2 from 1 June 1981 through 30 June 1982.  In addition, records show she was REFRAD in grade E-2 with an effective date of pay grade of 27 April 1981 and the applicant signed her DD Form 214 attesting to the accuracy of the document, including her rank and grade at the time of her separation from active duty.
5.  There is no evidence of record and the applicant provides insufficient evidence to show she held the rank of SP4 (E-4) from 1 June 1981 through the date she was REFRAD.  In addition, the applicant's LES's show no evidence of erroneous collections from her pay.

6.  Therefore, in view of all of the foregoing, there is no basis for granting the 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)                                         AR20110018224



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ABCMR Record of Proceedings (cont)                                         AR20110018224



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