IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120000757 


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 items 4a (Grade, Rate or Rank) and 4b (Pay Grade) of his 13 July 1986 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank and pay grade as sergeant/E-5 (SGT/E-5), and that if paid based on the incorrect rank at discharge, he be provided any pay due as a result.  

2.  The applicant states he was promoted to SGT/E-5 in 1985.  However, his DD Form 214 lists his rank and pay grade as specialist four/E-4 (SP4/E-4).  

3.  The applicant provides promotion documents 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 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 record shows the applicant enlisted in the Regular Army on 10 February 1982.  His DA Form 2 (Personnel Qualification Record-Part I) shows he was promoted to SGT/E-5 on 4 March 1985, as does item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record-Part II).

3.  The Military Personnel Records Jacket (MPRJ) contains U.S. Army Regional Personnel Center (RPC), Nurnberg Orders 85-66, dated 28 March 1985, which authorized the applicant's promotion to SGT/E-5 effective 1 April 1985 with a date of rank of 4 March 1985.  

4.  Nurnberg RPC Orders 97-24, dated 11 April 1986, directed the applicant’s assignment to the separation transfer point, Fort Dix, New Jersey for separation processing.  The standard name line (SNL) of these orders lists the applicant’s grade as SP4/E-4.  On 16 May 1986, these orders were amended to change his reporting date to the separation point.  The SNL of the amended orders lists his grade as SGT/E-5.  An Army Europe Form 5153-1 (Outprocessing Checklist) and a DA Form 664 (Service Member’s Statement Concerning Compensation from the Veterans Administration) completed during his separation processing both list his grade as SGT/E-5.  The MPRJ is void of any finance or pay-related records or documents.  

5.  On 13 July 1986, the applicant was honorably released from active duty after completing 4 years and 5 months of active duty service.  The DD Form 214 he was issued at the time lists his grade as SP4/E-4 in items 4a and 4b.  

6.  Army Regulation 625-5 (Separation Documents) 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 establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time of the applicant's separation stated the DA Forms 2 and  2-1 were the primary source records for information for entries on the DD Form 214, along with documents on file in the MPRJ.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to correct the rank and pay grade on his DD Form 214 and to be provided all back pay due as a result of the correction has been carefully considered and found to have partial merit.  The evidence of record confirms the applicant was promoted to SGT/E-5 effective 1 April 1985 with a date of rank of 4 March 1985, and that this is the grade documented on his DA Forms 2 and 2-1.  

2.  Although there are some documents in the MPRJ listing his grade as SP4/E-4 dated after 1 April 1985, there are no orders or documents related to a reduction in grade.  Further, his amended separation orders and documents completed during his separation processing show his grade at the time was SGT/E-5.  As a result, it appears the grade entries in items 4a and 4b of the DD Form 214 was the result of administrative error.  Therefore, it would be appropriate to correct his 
DD Form 214 accordingly.

3.  Absent any documents or finance records containing information related to the applicant’s pay at the time of separation, it must be presumed he was receiving pay based on the pay grade E-5 given the rank documented on his 
DA Forms 2 and 2-1.  As a result, there is an insufficient evidentiary basis to support granting the portion of the requested relief related to pay.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending items 4a and 4b of his DD Form 214 by deleting the current entries and replacing them with the entries “Sergeant" and “E-5," respectively.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to back pay. 



      _______ _   _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)                                         AR20120000757



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ABCMR Record of Proceedings (cont)                                         AR20120000757



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