IN THE CASE OF:	  

		BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130003902 


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:

* correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 18 March 1988 to show in item 12a (Date Entered Active Duty This Period) the date 30 July 1983 vice 7 May 1985
* retroactive payment of $39.00 per month for his military pay when he held the rank/grade of private first class (PFC)/E-3
* the issuance of the Physical Fitness Badge

2.  The applicant states the date of his DD Form 214 should be changed to 30 July 1983 because that is when he enlisted in the Army National Guard (ARNG).  His records wrongly show that he first enlisted in 1985.  His military pay needs to be changed from E-3 pay of $723.00 per month to E-3 over 2 years pay of $762.00 per month which is a difference of $39.00 per month.  He was only paid 10 to 15 percent of what he should have been paid.  He never received the Physical Fitness Badge that he earned.

3.  The applicant provides two DD Forms 214, a DA Form 2142 (Pay Inquiry), a DA Form 705 (Army Physical Fitness Test (APFT) Scorecard), and two letters.

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 California ARNG (CAARNG) in the rank/grade of PFC/E-3 on 14 July 1983.  He entered active duty for training (ADT) on 20 June 1984.  He was honorably released from ADT on 28 September 1984 in the rank of PFC to the control of the CAARNG.  The DD Form 214 he was issued for this period of service shows he completed 3 months and 9 days of creditable active service during this period of service.

3.  It is not clear when he was separated from the CAARNG.  However, his records contain a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 11 April 1985, wherein it shows he enlisted in the U.S. Army Reserve (USAR) delayed entry program (DEP) on that date.  He was discharged from the DEP on 6 May 1985.

4.  He enlisted in the Regular Army (RA) on 7 May 1985 and he held military occupational specialty 77F (Petroleum Supply Specialist).  He was promoted to the rank/grade of specialist four (SP4)/E-4 on 1 October 1986.

5.  He was honorably released from active duty on 18 March 1988 in the rank of SP4 and transferred to the USAR Control Group (Reinforcement).  He completed 2 years, 10 months, and 12 days of creditable active service during this period.

6.  Item 12a of the DD Form 214 he was issued for this period of service contains the entry 7 May 1985.

7.  The applicant provides a Pay Inquiry, dated 26 June 1987, wherein it contains the statement “Service Member requests adjusted time in service for pay purposes.  Service Member was in the ARNG prior to coming on active duty; supporting documents attached.”  

8.  The applicant does not provide any documentation that shows what pay he was receiving as a PFC, what pay he believes he should have received, or the amount of back pay he states he is entitled to.  His records do not contain any evidence that shows what pay he received while serving in the RA as a PFC and his pay records from 1985 are no longer available from Finance.

9.  The applicant provides an APFT scorecard, dated 8 December 1987, wherein it shows he scored a total of 300 points on the APFT on that date.  

10.  Army Regulation 635-5 (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 the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty (emphasis added).  

11.  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) prescribes Department of the Army policy for proper wear and appearance of Army uniforms and insignia.  Paragraph 14-4 states the only insignia authorized for wear on the physical training uniform is the Physical Fitness Badge.  

12.  Army Regulation 600-8-22 (Military Awards) states the Physical Fitness Badge was established by the Secretary of the Army on 25 June 1986.  Effective 1 February 1999, Soldiers who obtain a minimum score of 270 or above, with a minimum of 90 points per event on the APFT and meet the body fat standards will be awarded the Physical Fitness Badge for Physical Fitness Excellence.  Soldiers are required to meet the above criteria each record test to continue to wear the badge.  Permanent orders are not required for award of this badge. 

13.  Title 31, U.S. Code, section 3702, also known as the Barring Act, prohibits the payment of a claim against the U.S. Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant enlisted in the RA and entered active duty on 7 May 1985 which is correctly shown on his DD Form 214 for the period ending 18 March 1988.  The DD Form 214 is a record of continuous active 


duty service and there are no provisions to show the dates of enlistment in the ARNG/USAR on the DD Form 214.

2.  With respect to the Physical Fitness Badge, the applicant scored 300 on his December 1987 APFT.  Based on this score, he would have been awarded the Physical Fitness Badge.  Therefore, he is entitled to award of this badge and correction of his DD Form 214 to show it.  However, because this badge is actually an item of uniform wear there are no means to issue it once a Soldier as departed the Army.

3.  With respect to the payment of back-pay, financial records from the period the applicant contends he was underpaid are not available for review with this case and he has not provided any evidence that shows he was not paid properly when he held the rank of PFC.  Regardless, even if documentation were available, the reputed underpayment occurred over 28 years ago and is well over the 6-year limitation for filing claims against the government contained in the Barring Act.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Physical Fitness Badge to his DD Form 214. 

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so 
much of the application that pertains to correction of his DD Form 214 for the period ending 18 March 1988 to show the date of entry on active duty 30 July 1983 vice 7 May 1985 and retroactive payment of $39.00 per month for his 


military pay when he held the rank/grade of PFC/E-3 or to issuing him the Physical Fitness Badge.



      ___________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)                                         AR20130003902





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130003902



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1