IN THE CASE OF:
BOARD DATE: 16 August 2012
DOCKET NUMBER: AR20120002625
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 items 6a (Grade, Rate or Rank) and 6b (Pay Grade) of his DD Form 214 (Report of Separation from Active Duty) to show "specialist five (SP5)/E-5" vice "specialist four (SP4)/E-4."
2. The applicant states he was promoted to E-5 on 28 January 1979, 2 weeks before he got out of the Army on 8 February 1979. He believes this was done in order to get him to stay in.
3. The applicant provides no additional evidence.
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 applicant's records show he enlisted in the Regular Army on 9 February 1976 and he held military occupational specialty 94B (Food Service Specialist). He was promoted to SP4/E-4 on 19 August 1977.
3. On 27 May 1978, he appeared before an E-5 promotion board and was recommended for promotion to E-5.
4. On 28 July 1978, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for failing to report to his appointed place of duty. The punishment imposed was 14 days extra duty, forfeiture of $117.00 for 1 month, and reduction to private first class (PFC)/E-3. The reduction to PFC was suspended until 28 January 1979.
5. Orders Number 10-40, dated 30 January 1979, issued by Headquarters, 1st Cavalry Division, Fort Hood, TX, released him from active duty effective 8 February 1979. These orders show his rank as SP4.
6. His records contain a DD Form 1407 (Dependent Medical Care and DD Form 1173 Statement), dated 8 February 1979, wherein it shows the applicant's rank as E-4. He authenticated this form by placing his signature in the appropriate block on that date.
7. A DA Form 2962 (Security Termination Statement and Debriefing Certificate), dated 8 February 1979, shows his rank as E-4. He authenticated this form by placing his signature in the appropriate block on that date.
8. He was honorably released from active duty on 8 February 1979 and transferred to the U.S. Army Reserve. He completed 3 years of net active service.
9. Items 6a and 6b of the DD Form 214 he was issued contains the entries "SP4" and "E-4," respectively. The applicant authenticated this form by placing his signature in the appropriate block.
10. There are no orders in his record that shows he was ever promoted to SP5. There is no evidence in his record that his reduction to PFC was imposed and he was reduced to PFC.
DISCUSSION AND CONCLUSIONS:
The evidence of record shows the highest rank/grade the applicant held was SP4/E-4. Although he appeared before an E-5 promotion board and was recommended for promotion, there is no evidence in his record and he has not provided any evidence that shows he was ever promoted to SP5/E-5. The DD Form 214 he was issued correctly shows his rank/grade as SP4/E-4. Therefore, he is not entitled to 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) AR20120002625
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ABCMR Record of Proceedings (cont) AR20120002625
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