IN THE CASE OF:
BOARD DATE: 27 March 2012
DOCKET NUMBER: AR20110019697
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 the rank and pay grade listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show specialist four (SP4)/E-4.
2. The applicant states his DD Form 214 should show his rank and pay grade as SP4/E-4.
3. The applicant provides an Army/American Council on Education Registry Transcript 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 record shows after having served in the Army National Guard, the applicant entered the Regular Army (RA) on 19 November 1985. He was trained in and awarded military occupational specialty (MOS) 63E (Tank Mechanic).
3. The applicants DA Form 2 (Personnel Qualification Record-Part I), prepared on 28 February 1989, contains entries indicating the applicant held the rank and pay grade of SP4/E-4 which he attained on 1 June 1987.
4. The applicants DA Form 2-1 (Personnel Qualification Record-Part II) which he last reviewed, on 15 September 1989, shows he was advanced to private first class (PFC)/E-3 on 1 November 1986. There is no entry pertaining to promotion/advancement to SP4/E-4.
5. There are various documents in the available record that indicate the applicant held the rank of SP4/E-4. The last orders published on the applicant in the available record are discharge orders, dated 30 November 1989, which show he was discharged, on 15 November 1989, in the rank of PFC/E-3.
6. On 15 November 1989, the applicant was honorably discharged after completing 3 years, 11 months, and 27 days of active military service. The
DD Form 214 he was issued lists his rank and pay grade as PFC/E-3.
7. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. The version of the regulation in effect at the time of the applicants separation indicating the DA Form 2-1 was the primary source records for entries on the DD Form 214.
DISCUSSION AND CONCLUSIONS:
1. The applicants request to correct the rank and pay grade listed on his
DD Form 214 has been carefully considered. However, there is insufficient evidence to support this claim.
2. There are record entries and documents in the record that would appear to show the applicant was promoted to SP4/E-4 on 1 June 1987; however, there are no orders or other documents authorizing this promotion in the record. Further, even had the applicant been promoted to that rank and pay grade, it cannot be determined with any certainty that he was not reduced for some reason prior to separation.
3. Absent evidence confirming the applicant held the rank and pay grade of SP4/E-4 on the date of separation, there is a presumption of regularity attached to the rank and pay grade of PFC/E-3 listed on the DD Form 214. As a result, there is insufficient evidentiary basis to support 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) AR20110019697
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ABCMR Record of Proceedings (cont) AR20110019697
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