IN THE CASE OF:	  

		BOARD DATE:  30 August 2012

		DOCKET NUMBER:  AR20120004544 


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 record and item 4a (Grade, Rate, or Rank) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank as corporal (CPL). 

2.  The applicant states that in May 1979 he was laterally appointed to CPL and assigned as the noncommissioned officer in charge (NCOIC) of the Crisis Prevention Office at Walter Reed Army Medical Center (WRAMC).  

3.  The applicant provides the four attachments identified in item 10 of his application in support of his request.  

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 12 June 1978 with prior active service, and he was trained in and awarded military occupational specialty (MOS) 95B (Military Police).  

3.  The applicant's DA Form 2 (Personnel Qualification Record-Part I) prepared on 12 March 1981 lists his rank as specialist four (SP4) in item 9 (Grade).  The applicant’s DA Form 2-1 (Personnel Qualification Record-Part II) shows he was advanced to SP4/E-4 on 1 May 1977 in item 18 (Appointments and Reductions).  Item 18 contains no entry related to a lateral appointment.  

4.  Item 35 (Record of Assignments) of the DA Form 2-1 shows the applicant was assigned to WRAMC on 27 February 1979, and that he served as a military policeman in MOS 95B during his entire enlistment.  

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains the orders assigning the applicant from Germany to WRAMC, dated 27 February 1979.  These orders show the applicant was being assigned to a military policeman position at WRAMC in the rank of SP4.  It also contains a Military Personnel Office Inprocessing Checklist, dated 27 February 1979, which shows the applicant was assigned to a position with an authorized rank of SP4.  All orders in the MPRJ including the applicant’s separation orders, dated 25 March 1981, list his rank as SP4 in the standard name line.  

6.  The MPRJ contains a letter of commendation from the Provost Marshal, dated 21 May 1979, which addresses the applicant as a CPL.  

7.  On 11 June 1981, the applicant was honorably released from active duty after completing 3 years of active military service this period.  He had also completed 2 years, 7 months, and 5 days of prior active service.  The DD Form 214 he was issued at the time lists his rank as SP4 in item 4a.

8.  The applicant provides a letter of commendation dated 21 May 1979 that addresses him as a CPL.  He also provides a DA Form 2166-3 (Enlisted Evaluation Report), ending in September 1979, which lists his rank as CPL, and a DA Form 2496 (Disposition Form), dated 25 May 1979, which shows he was assigned as a desk sergeant, which was an authorized sergeant (SGT) position.  He finally provides a counseling statement regarding his refusal to take action to meet length of service requirements for an assignment to Germany, dated
5 March 1980, which also lists his rank as CPL.  

9.  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 also establishes standardized policy for preparing and distributing the DD Form 214.  The regulation stipulates the rank title held on the date of separation will be entered in item 4a.

10.  Army Regulation 614-200 (Enlisted Assignments and Utilization Management), in effect at the time, provides guidance on the selection of enlisted Soldiers for assignment, utilization, reclassification, details, transfers, and training.  Paragraph 3-14 (Lateral Appointments) states:

	a.  Commanders (O-5 and above) may authorize lateral appointments of SP4 to CPL without local selection board action provided the Soldier concerned is assigned to an authorized (documented) noncommissioned officer (NCO) position in their career progression military occupational specialty.

	b.  Lateral appointment will be announced by either DA Form 4187 or informal memorandum.  DA Form 4187 or informal memorandum will be the only announcement of the lateral appointment.

	c.  Soldiers appointed to CPL will retain the grade when reassigned from the NCO position, including permanent change-of-station moves.  However, the unit commander may laterally appoint CPL to SP4 without the Soldier's consent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct the rank title in item 4a of his DD Form 214 has been carefully considered.  However, by regulation the rank title held on the date of separation will be entered on the DD Form 214.

2.  The evidence of record indicates the applicant held the rank title SP4 on the date of separation, as indicated in the separation orders and DD Form 214 in his record.  

3.  The applicant provides a duty position assignment memorandum that shows he was assigned to a position authorizing a rank of SGT.  However, he fails to provide a lateral appointment memorandum showing he was officially laterally appointed to CPL and his record does not contain such an order.  

4.  Further, even if the applicant had been formally laterally appointed to CPL, by regulation, his commander retained the discretionary authority to laterally appoint him back to the rank of SP4 without his consent.  Therefore, given that his separation orders confirm he held the rank of SP4 at the time of separation the available evidence does not support his request. 

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120004544



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ABCMR Record of Proceedings (cont)                                         AR20120004544



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