IN THE CASE OF:
BOARD DATE: 13 December 2012
DOCKET NUMBER: AR20120010042
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 retired rank/grade.
2. The applicant states he was retired as a specialist (SPC)/E-4 and should have been retired as a sergeant (SGT)/E-5. He claims he received nonjudicial punishment (NJP) for an offense he did not commit and was unjustly reduced.
3. The applicant provides no documentary evidence 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 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 enlisted in the Regular Army on 9 August 2002. He was trained in and awarded military occupational specialty (MOS) 63J (Chemical Equipment Repairer).
3. Section III (Service Data) of the Enlisted Record Brief shows he was promoted to SGT/E-5 on 1 December 2005, and that he was reduced to SPC/E-4 on 9 May 2007. There are no documents in the record explaining the reduction. The NJP action referred to by the applicant is also not on file in the applicants Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File.
4. On 27 October 2008, the applicant was honorably separated by reason of disability, temporary and on 28 October 2008, he was placed on the Temporary Disability Retired List (TDRL) in the retired rank/grade of SPC/E-4.
5. On 13 August 2010, the applicant was removed from the TDRL and permanently retired in the rank/grade of SPC/E-4.
6. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policy for enlisted administrative separations. Chapter 12 contains guidance on retirement and states, in pertinent part, that retirement normally will be in the regular or reserve grade the Soldier holds on the date of retirement.
DISCUSSION AND CONCLUSIONS:
1. The applicants request to correct his retired rank/grade to show he retired as a SGT/E-5 has been carefully considered. However, there is insufficient evidence to support this claim.
2. The evidence of record confirms the applicant was reduced from SGT/E-5 to SPC/E-4 on 9 May 2007. The NJP action referred to by the applicant is not on file in his AMHRR and he has failed to provide it. Absent any evidence of record or independent evidence provided by him to corroborate his claim that the NJP action and reduction were unjust, there is an insufficient evidentiary basis to support granting the requested relief. There is also insufficient evidence to show he satisfactorily served as a SGT/E-5 (highest grade held).
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) AR20120010042
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