IN THE CASE OF:
BOARD DATE: 21 August 2012
DOCKET NUMBER: AR20120002423
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, in effect, his rank be corrected on his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending
31 January 1995.
2. The applicant states:
* He served in an enlisted status from 6 November 1974 to 30 December 1983 until he was appointed a chief warrant two (CW2)
* He was a CW2 until 1 February 1989 when he was demoted back to a staff sergeant
* He retired on 1 February 1995 in the rank of sergeant first class (SFC)
* His records were corrected to show he was promoted to CW3 for retirement purposes and he retired in the rank of CW3
* He received promotion orders and letters indicating his records had been corrected but he never received a corrected DD Form 214 or DD Form 215 (Correction to DD Form 214)
3. The applicant provides:
* Retirement orders, dated 29 June 1994
* Letter, dated 16 May 1996, from the Office of Promotions, Reserve Components, U.S. Total Army Personnel Command, St. Louis, MO
* Orders S194-4, dated 10 October 1996
* Orders S195-11, dated 11 October 1996
* Letter, dated 15 October 1996, from Officer Retirements Section, U.S. Total Army Personnel Command
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. Having prior enlisted service in the Regular Army, the applicant was appointed a warrant officer one on 30 December 1983 in the U.S. Army Reserve (USAR) and entered active duty. He was promoted to CW2 on 30 December 1985. He was released from active duty on 31 January 1989 in the rank of CW2.
3. He enlisted in the Regular Army on 1 February 1989 in the grade of staff sergeant. He was promoted to SFC on 1 May 1993. He retired on 31 January 1995 in the rank of SFC.
4. His DD Form 214 for the period ending 31 January 1995 shows in:
* Item 4a (Grade, Rate, or Rank) the entry "SFC"
* Item 4b (Pay Grade) the entry "E7"
* Item 12h (Effective Date of Pay Grade) the entry "1993 05 01" (1 May 1993)
5. In April 1995, the Army Board for Correction of Military Records (ABCMR) corrected his records to show he was promoted to CW3 in the USAR in 1991.
6. Promotion orders, dated 8 May 1996, show he was promoted to CW3 effective 30 December 1991.
7. Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. It states for item 4 (Grade, Rate, or Rank) enter the active duty grade or rank and pay grade at time of separation.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests his rank be corrected on his DD Form 214 for the period ending 31 January 1995 to show CW3.
2. Evidence shows:
* he retired on 31 January 1995 in the rank of SFC
* his DD Form 214 for the period ending 31 January 1995 shows his rank as SFC
* in April 1995 the ABCMR corrected his records to show he was promoted to CW3 in the USAR in 1991
3. However, since the governing regulation states the active duty grade or rank and pay grade at the time of separation would be entered in item 4 of the DD Form 214, there is no basis for amending his rank on his DD Form 214 for the period ending 31 January 1995.
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) AR20120002423
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ABCMR Record of Proceedings (cont) AR20120002423
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