IN THE CASE OF:	  

		BOARD DATE:  21 June 2012

		DOCKET NUMBER:  AR20110024429 


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) to show his rank/pay grade as staff sergeant (SSG)/E-6.

2.  The applicant states his DD Form 214 shows his rank and pay grade as specialist four (SP4)/E-4.  He states he was an SSG at the time of his release from active duty.

3.  The applicant provides his DD Form 214 and U.S. Army Reserve Personnel Center (DARP) Form 249 (Chronological Statement of Retirement Points).

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 30 March 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63B (Light Wheel Vehicle Mechanic).  He served at Fort Lee, VA, and in Germany.

3.  His DA Form 2-1 (Personnel Qualification Record) shows the following promotions/dates:

* private/E-1 – 30 March 1981
* private/E-2 – 30 September 1981
* private first class/E-3 – 1 February 1982
* SP4/E-4 – 1 June 1983

4.  His record contains Orders 146-36 issued by the U.S. Army Regional Personnel Center, Würzburg, Germany, on 26 May 1983 promoting him to SP4/E-4 effective 1 June 1983.

5.  His records do not contain recommendations or orders promoting him to sergeant (SGT)/E-5 or SSG/E-6.

6.  His DD Form 214 shows he was honorably released from active duty on 19 March 1985 in the rank/grade of SP4/E-4.  This form also shows he completed 3 years, 11 months, and 20 days of net active service, of which 2 years, 4 months, and 20 days were credited as foreign service.  He authenticated his DD Form 214 with his signature.

7.  He was transferred to the U.S. Army Reserve (USAR) to complete his remaining service obligation.  His record contains Orders 53-4 issued by Headquarters, 94th USAR Command, Hanscom Air Force Base, MA, on 1 May 1986.  These orders show his grade/rank as SP4/E-4 and assigned him to Company B, 483rd Engineer Battalion, Taunton, MA, effective 3 May 1986.

8.  His record contains a DA Form 4644-R (Army Reserve Reenlistment Data), dated 3 May 1983, wherein his rank/grade is listed as SP4/E-4 and his date of rank as 1 June 1983.

9.  His record contains annual training (AT) Orders 188-062 issued by Headquarters, 94th USAR Command, Hanscom Air Force Base, MA, on 1 May 1986.  These orders list his rank/grade as SP4/E-4.

10.  His record contains Orders 107-2 issued by Headquarters, 94th USAR Command, Hanscom Air Force Base, MA, on 12 September 1986 releasing him from his USAR unit for unsatisfactory participation.  These orders show his rank/grade as SP4/E-4.

11.  Though there are no promotion orders in his records, his record contains 
Orders D-03-020063 issued by the USAR Personnel Center on 10 March 1987 discharging him from the USAR in the rank/grade of SSG/E-6.

12.  He provides a DARP Form 249, dated 11 August 1990.  This form shows his current rank/grade as SSG/E-6; however, it does not list his date of rank.

13.  Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 7-5, in effect at the time, stated promotion to E-5 through E-9 would be announced in orders.  Orders may be issued for promotion to grades E-5 and E-6 before the effective date that the Soldier will equal or exceed the announced Department of the Army promotion point cut-off score provided he or she is within 30 days of the effective date.  Promotions will be effective no earlier than the date announced in the Department of the Army promotion point cut-off score letter.  The date of promotion is the first calendar day of the month he or she is eligible and equals or exceeds the announced Department of the Army promotion point cut-off scores.  Each promotion order will include the following statement:  "Promotion is not valid and will be revoked if the Soldier is not promotable on the effective date of promotion."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his rank/grade should be changed from SP4/E-4 to SSG/E-6 because he was an SSG/E-6 at the time of his release from active duty.

2.  The evidence of record shows he was assigned to the USAR in the rank/grade of SP4/E-4 and was later released from his USAR unit for unsatisfactory participation in the rank/grade of SP4/E-4.

3.  Army regulations require all promotions between the grades of E-5 an E-9 be announced through promotion orders; however, his records do not contain orders promoting him to SGT or SSG.

4.  There is no evidence in his records and he has not provided any evidence to show he was promoted to SGT or SSG while serving on active duty or that he was an SSG at the time of his release from active duty.  Based on the foregoing evidence, he is not entitled to correction of his DD Form 214 to show his rank/grade as SSG/E-6.


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 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)                                         AR20110024429



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ABCMR Record of Proceedings (cont)                                         AR20110024429



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