BOARD DATE: 30 May 2013
DOCKET NUMBER: AR20120018235
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 to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/pay grade as major (MAJ)/O4 instead of captain (CPT)/O3.
2. The applicant states while on terminal leave he was promoted to MAJ under Orders Number 294-035 with an effective date and date of rank of 1 November 2004. He was separated on 29 November 2004. His promotion was prior to his separation date. He only recently located his order promoting him to MAJ and feels this is the rank that should be shown on his DD Form 214.
3. The applicant provides copies of his MAJ promotion orders and DD Form 214.
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 was appointed in the U.S. Army Reserve as a second lieutenant on 14 May 1994. He entered active duty on the same day.
3. He was promoted to CPT with an effective date and date of rank of 1 June 1998.
4. Orders Number 254-0271 issued by XVIII Airborne Corps and Fort Bragg, on 10 September 2004, initiated his discharge processing and reassignment to the transition center with a discharge date of 29 November 2004.
5. Order Number 294-035 issued by the U.S. Total Army Personnel Command, on 20 October 2004, announced his promotion to MAJ with an effective date and date of rank of 1 November 2004. The orders state the promotion was not valid and will be revoked if the officer concerned is not in promotable status on the effective date of promotion.
6. He was honorably discharged from active duty on 29 November 2004, for Miscellaneous/General Reasons. He was credited with completing 10 years, 6 months, and 16 days of net active service. His DD Form 214 shows in:
* Item 4a (Grade, Rate, or Rank) CPT
* Item 4b (Pay Grade) 03
* Item 12h (Effective Date of Pay Grade) 1 June 1998
7. Army Regulation 635-5 (Personnel Separations - Separation Documents) provides instructions for the preparation of the DD Form 214. The regulation states items 4a, 4b, and 12h would list the rank, grade, and the date of rank of the individual's promotion or reduction to the rank/grade in which the individual was serving on the effective date of release, separation, or discharge from active duty.
8. Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of active duty officers. This regulation stated:
* Paragraph 1-12d An officer who is on a promotion list and is removed from the active duty list (ADL) prior to the effective date of promotion shall not be promoted from the ADL promotion list
* Paragraph 1-18 Officers accepting promotion to MAJ are required to serve satisfactorily 6 months in the new grade in order to separate in the higher grade
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that in September 2004 discharge processing was initiated for him with a discharge date of 29 November 2004. Orders were issued on 20 October 2004 announcing his promotion to MAJ with an effective date and date of rank of 1 November 2004. He was discharged on 29 November 2004.
2. Prior to his discharge he had not completed the required 6 months satisfactory service in the grade of MAJ in order to separate in the higher grade. He was properly issued a DD Form 214 showing in his rank/pay grade as CPT/O3. Therefore, he is not entitled to correction of his DD Form 214 to show his rank/grade as MAJ/O4.
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) AR20120018235
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ABCMR Record of Proceedings (cont) AR20120018235
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