IN THE CASE OF:
BOARD DATE: 17 April 2012
DOCKET NUMBER: AR20110018710
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 his grade and pay grade on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 26 April 2004 be corrected to show specialist (SPC)/pay grade E-4.
2. The applicant states he was being paid as a SPC up to and including the date of his discharge because the Defense Finance and Accounting Service (DFAS) did not approve his reduction in rank.
3. The applicant provides Leave and Earnings Statements (LES) for the periods from November 2003 to April 2004.
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. He enlisted in the Regular Army on 5 November 2002 for a period of 3 years. He had previously served 3 years of active service in the Regular Army. His Enlisted Record Brief (ERB), with a brief date of 11 March 2004, shows he was promoted to SPC on 16 November 2002.
3. Two DA Forms 4187 (Personnel Action) show he was absent without leave (AWOL) from 6 - 13 January 2004.
4. There are no DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ) in his official military personnel file (OMPF).
5. A DA Form 4856 (Developmental Counseling Form), dated 11 March 2004, advised him he was being recommended for separation. This form identified him as a private first class (PFC)/pay grade E-3.
6. A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) flagged him effective 12 March 2004 for elimination action. This form identified him as a PFC.
7. On 26 April 2004, he was discharged by reason of a physical condition, not a disability. His separation orders identify him as a PFC. His DD Form 214 contains the following entries:
* Item 4a (Grade, Rate, or Rank) - PFC
* Item 4b (Pay Grade) - E3
* Item 12h (Effective Date of Pay Grade) - 2004 02 06 (6 February 2004)
8. The Total Army Personnel Data Base (TAPDB) shows his grade as PFC with a date of rank of 6 February 2004.
9. His LESs from November 2003 to March 2004 indicated he was being paid in the grade of E-4. The LES for the period 1-10 April 2004 indicates he was being paid in the grade of E-3. The remarks section contains a note of a grade change effective 6 February 2004.
10. Paragraph 3-37 of Army Regulation 27-10 (Military Justice) states the original DA Form 2627 for Soldiers who are in the rank of specialist (SPC) or corporal (CPL) and below (prior to punishment) will be filed locally in unit nonjudicial punishment or unit personnel files. Such locally-filed originals will be destroyed at the end of 2 years from the date imposition of punishment or on the Soldiers transfer to another general court-martial authority, whichever occurs first.
11. Chapter 5 of Field Manual 12-6 (Personnel Doctrine) describes the TAPDB as the Army's official data base which serves as the Army's official repository for the U.S. Total Army Personnel Command, U.S. Army Reserve Personnel Command (both now known as Human Resources Command), and National Guard Bureau.
12. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. This regulation, in pertinent part, states that the active duty grade or rank and pay grade at the time of separation, taken from the Soldiers ERB, will be entered in Item 4a and 4b of the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. Records of NJP for SPC and below are not maintained in the OMPF. However, due to the close proximity of the ending date of his period of AWOL,
13 January 2004, and his date of rank for PFC, 6 February 2004, it is reasonable to conclude he accepted NJP which consisted of a reduction to PFC.
2. A DA Form 4856, dated 11 March 2004, and a DA Form 268, dated 12 March 2004, identified him as a PFC.
3. His ERB does not show he was reduced from SPC to PFC. However, the TAPBD is considered to more accurately reflect a Soldier's current status on the date of his discharge. The TAPBD shows him as a PFC with a date of rank of
6 February 2004.
4. The LES's from November 2003 to 30 March 2004 indicate he was being paid as an E-4. However, his LES for the period 1-10 April 2004 shows he was being paid as an E-3 and noted a change of grade effective 6 February 2004.
5. In view of the above, there is sufficient evidence to determine his grade and pay grade at the time of his discharge was PFC and E-3. Therefore, his grade and pay grade reflected on his DD Form 214 are correct.
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) AR20110018710
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ABCMR Record of Proceedings (cont) AR20110018710
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