IN THE CASE OF:
BOARD DATE: 20 August 2013
DOCKET NUMBER: AR20120021805
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as brigadier general (BG) in lieu of colonel (COL) and to show award of the Distinguished Service Medal in lieu of the Defense Superior Service Medal.
2. The applicant states he is about to apply for social security benefits and requires a corrected DD Form 214 for that purpose. He retired on 30 June 1999.
His retirement orders, dated 11 May 1999, show his rank as COL effective 1 December 1986. These orders were amended by U.S. Total Army Personnel Command (TAPC) Orders S121-2, dated 19 August 1999, to show his retired grade/date of rank as BG effective 1 July 1999. He was issued a DD Form 215 (Correction to DD Form 214), dated 25 March 2000, which deleted award of the Defense Superior Service Medal and added the Distinguished Service Medal.
3. The applicant provides copies of:
* TAPC Orders S64-4, dated 11 May 1999
* TAPC Orders S121-2, dated 19 August 1999
* DD Form 215
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 served on active duty from 28 January 1965 through 30 June 1999.
3. On 7 May 1999, the U.S. Military Academy Superintendent recommended approval for award of the Distinguished Service Medal to the applicant and requested the applicant's advancement on the Retired List to the honorary grade of BG.
4. TAPC Orders S64-4, dated 11 May 1999, retired the applicant effective 30 July 1999 and placed him on the Retired List in the rank of COL effective 1 July 1999.
5. The applicant retired from the Regular Army on 30 June 1999 with an effective date of rank to COL of 1 December 1986. He completed 34 years, 5 months, and 3 days of active Federal service.
6. TAPC Orders S121-2, dated 19 August 1999, amended the applicant's retirement orders to show his placement on the Retired List in the rank of BG effective 1 July 1999.
7. The applicant's records contain no evidence showing the applicant was selected for promotion to BG while serving on active duty.
8. On 25 March 2000, the applicant was issued a DD Form 215 deleting award of the Defense Superior Service Medal and adding the Distinguished Service Medal.
9. Title 10, U. S. Code, section 3962 states that upon retirement any permanent professor of the U.S. Military Academy whose grade is below brigadier general,
and whose service as such a professor has been long and distinguished, may, in the discretion of the President, be retired in the grade of brigadier general.
10. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 and states:
a. a DD Form 215 will be issued to provide missing information or to correct any information and
b. a service member's active duty grade of rank and pay grade at the time of separation as shown on his or her Enlisted Record Brief/Officer Record Brief is entered in item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) of the DD Form 215.
DISCUSSION AND CONCLUSIONS:
1. The applicant was promoted to the honorary rank of BG with advancement on the Retired List effective the day after he left active duty service. The rank/grade entered on a DD Form 214 records a service member's status as of the date of release from active duty. Therefore, his DD Form 214 correctly shows his rank and grade as of the date of his release from active duty and no action is warranted.
2. The applicant's request to correct his DD Form 214 to show award of the Defense Superior Service Medal in lieu of the Distinguished Service Medal has already been properly accomplished by a DD Form 215 issued on 25 March 2000 and no further action is warranted.
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 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) AR20120021805
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ABCMR Record of Proceedings (cont) AR20120021805
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