IN THE CASE OF:
BOARD DATE: 22 January 2013
DOCKET NUMBER: AR20120011621
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show private first class (PFC)/E-3.
2. The applicant states his DD Form 214 reflects the grade of private one (PV1) and pay grade E-1 but it should reflect PFC/E-3 as shown on his Army Continuing Education System (ACES) records, Post 9/11 GI Bill Transfer of Education Benefits record, and Army/American Council on Education Registry Transcript System (AARTS).
3. The applicant provides:
* Transfer of Education Benefits document
* ACES records
* AARTS document
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 2 July 2002. He completed his training and was awarded military occupational specialty 13B (cannon crewmember). He served in Iraq from 4 April 2003 to 7 December 2003 and he attained the rank of PFC.
3. On 24 February 2004, nonjudicial punishment was imposed against him for being absent without leave from 18 December 2003 to 15 January 2004. His punishment included a reduction to E-1, a forfeiture of pay (suspended), restriction, and extra duty.
4. On 30 April 2004, he was discharged under honorable conditions (a general discharge) for misconduct (commission of a serious offense).
5. On 15 April 2005, the Army Discharge Review Board upgraded his general discharge to honorable.
6. His DD Form 214 shows in:
* item 4a the entry "PV1"
* item 4b the entry "E1"
* item 12h (Effective Date of Pay Grade) the entry "2004 02 24"
(24 February 2004)
7. There is no evidence of record which shows he was re-appointed to PFC/E-3 after his reduction on 24 February 2004.
8. He provided various documents which show his rank as PFC.
9. Army Regulation 635-5 (Personnel Separations - 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 4a and 4b, enter the active duty grade of rank and pay grade at time of separation.
DISCUSSION AND CONCLUSIONS:
1. The applicant's military record shows he was reduced from E-3 to E-1 on
24 February 2004. There is no evidence of record that shows he was again appointed to PFC/E-3 after 24 February 2004 or prior to his discharge on 30 April 2004.
2. 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) AR20120011621
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20120011621
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