IN THE CASE OF:	  

		BOARD DATE:	    18 April 2012

		DOCKET NUMBER:  AR20110020701 


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 (Certificate of Release or Discharge from Active Duty) for the period ending 31 July 2007 to show:

* Item 2 (Department, Component and Branch) as U.S. Army Reserve (USAR) vice Regular Army (RA)
* Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) as sergeant (SGT)/
E-5 vice specialist (SPC)/E-4
* Item 11 (Primary Specialty) as military occupational specialty (MOS) 68A20 (Medical Equipment Repairer) vice 68A10

2.  The applicant states he thinks there was an oversight on the part of the out-processing clerk.  He was promoted while on active duty for training and the clerk was not aware of it.

3.  The applicant provides his DD Form 214 and orders.

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 requested correction of item 2 of his DD Form 214 for the period ending 31 July 2007 to show USAR.  A DD Form 215 (Correction to DD Form 214), dated 31 March 2008, corrected item 2 of the applicant's DD Form 214 to show USAR.  Therefore, this portion of his request will not be discussed further in these Proceedings.

3.  The applicant's records show he enlisted in the Regular Army on 2 June 2000 in the rank of private/E-1 and he held MOS 11B (Infantryman).  He was promoted to the rank of SP/E-4 on 1 January 2002.  He was honorably released from active duty on 30 July 2004 and he was transferred to the USAR Control Group (Reinforcement).  He completed 4 years, 1 month, and 29 days of creditable active service.

4.  The DD Form 214 he was issued for this period of service contains in items 4a and 4b the entries "SPC" and "E-4" respectively.  Item 11 contains the entry "11B1P."

5.  His records contain Orders Number C-01-600468, dated 6 January 2006, issued by the U.S. Army Human Resources Command - St. Louis, wherein he was released from the USAR Control Group (Reinforcement) and transferred to the 339th Combat Support Hospital (CSH), Troop Program Unit, Coraopolis, PA, with an effective date of 6 January 2006.  His rank is shown as SPC.

6.  He entered active duty for training on 22 September 2006 and was subsequently awarded MOS 68A.

7.  He was honorably released from active duty on 31 July 2007 and assigned to the 339th CSH.  He completed 10 months and 9 days of creditable active service.

8.  Items 4a and 4b of the DD Form 214 he was issued for this period of service contain the entries "SPC" and "E-4" respectively.  Item 11 shows the entry "68A10."

9.  His records contain DA Form 1059 (Service School Academic Evaluation Report) wherein he was rated for the period 26 September 2006 to 31 July 2007, while attending the Medical Equipment Repairer Course, Sheppard Air Force Base, TX.  His rank is shown as SGT.
10.  Orders Number 08-158-00049, dated 6 June 2008, issued by Headquarters, Army Medical Command, Pinellas Park, FL, honorably released him from the USAR effective 6 June 2008.  His rank is shown as SGT.

11.  His records do not contain orders promoting him to the rank of SGT.

12.  A review of his records shows he is currently serving in the USAR in the rank of SGT with a date of rank of 24 July 2009.

13.  The applicant provides Orders Number 08-005-0019, dated 5 January 2008, issued by Headquarters, Army Medical Command, wherein he was awarded primary MOS 68A2P effective 5 January 2008.  His rank is shown as SGT.

14.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at the time of separation and are obtained from the Soldier's records (promotion or reduction orders).  In item 11 show the Soldier's MOS and grade level.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant transferred to the USAR in the rank of SPC on 31 July 2004 and was promoted to SGT in the USAR on 24 July 2009.  Although the DA Form 1059 for the rating period ending 31 July 2007 and orders dated January and June 2008 show his rank as SGT, his records do not contain promotion orders or any other documentation that shows he held this rank at the time of his active duty service from 22 September 2006 to 31 July 2007.  

2.  In the absence of evidence to the contrary, it is presumed the DD Form 214 he was issued for this period of service was prepared with his rank/grade shown as SPC/E-4 and his MOS as 68A10 based on information obtained from his records at that time.  In the absence of promotion orders that show he was promoted to the rank of SGT prior to his release from active duty on 31 July 2007, there is insufficient evidence upon which to grant him 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)                                         AR20110020701





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ABCMR Record of Proceedings (cont)                                         AR20110020701



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