BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130006327 


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 reconsideration of his previous request for correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 11 June 1981 to show his rank as corporal (CPL) vice specialist four (SP4). 

2.  The applicant states he is providing a new argument that was not previously considered.

3.  The applicant provides two certificates and a letter of appreciation.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120004544, on 30 August 2012.

2.  As a new argument the applicant states:

	a.  The ABCMR relied on entries on his DA Form 2-1 (Personnel Qualification Record) and wrongly assumed this form was correct.  This form along with his DD Form 214 failed to list his certificates of achievement, letters of commendations, and other such awards.  One document for example listed his duties as "Desk Sergeant" yet this assignment is not listed on his DA Form 2-1. The omission clearly shows the Board should not rely on either the DD Form 214 or the DA Form 2-1 and should discard any reference to them.  The DA Form 2496 (Disposition Form) assigning him to the position of "Desk sergeant" is the best evidence.  It clearly established that such assignment to a Noncommissioned Officer (NCO) rank cannot be laterally given to a specialist as the Record of Proceeding states.

	b.  The ABCMR staff failed to fully cite Army Regulation 614-200 (Enlisted Assignments and Utilization Management), paragraph 3-15c(2) which states "However, the commander may laterally appoint a CPL to SP4 without the Soldier's consent or board action (a)  For disciplinary action under the Uniform Code of Military Justice (UCMJ) (10 U.S. Code 815) that adversely affects the abilities to perform duties as a noncommissioned officer (NCO)  (b) For demonstrated substandard performance of technical or supervisory duties  (c)  Upon direction of the U.S. Army Human Resources Command (HRC)" (emphasis added).

	c.  The complete citation shows that the commander's authority to laterally appoint from CPL to SP4 shall only be made in any one of three specific situations.  He was not at that time and he had never been the subject of any action under the UCMJ.  His DA Form 2166-5 (Enlisted Evaluation Report) [he previously submitted] shows that he continuously performed above standard.  In addition, there is no documentation that shows HRC ever directed a lateral appointment from CPL to SP4.

	d.  Given the complete context of the regulation, it is clear the wording strongly demonstrates the Army's intention that Soldiers promoted to the rank of CPL have proven themselves and earned the rank and associated responsibilities and respect.  It is also clear that such Soldiers will retain that rank from the time of the appointment unless the Soldier's actions are such to demonstrate they no longer deserve to hold the rank of an NCO or the reduction is consistent with Army Regulation 614-200 as cited above.

3.  Having had prior active service the applicant enlisted in the Regular Army on 12 June 1978 and he held military occupational specialty 95B (Military Police (MP)).  

4.  On 27 February 1979, he was assigned to the 236th MP Company, Walter Reed Army Medical Center (WRAMC), Washington, DC.

5.  Orders 56-8, dated 25 March 1981, issued by Headquarters, WRAMC, reassigned him to the U.S. Army Separation Transfer Point, WRAMC, for separation processing with a report date of 11 June 1981.  These orders show his rank as SP4.
6.  He was honorably released from active duty and transferred to the U.S. Army Reserve on 11 June 1981.

7.  Items 4a (Grade, Rate or Rank) of the DD Form 214 he was issued for this period of service contains the entry SP4.

8.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to SP4 on 1 May 1977.  There are no entries that show a lateral appointment to CPL.  His record is void of orders laterally appointing him to CPL.

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The regulation stipulates the rank title held on the date of separation will be entered in item 4a of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 for the period ending 11 June 1981 should be corrected to show his rank as CPL vice SP4.  

2.  Promotion or appointment to the rank of CPL requires an order from the promotion/appointment authority.  

3.  His contention that Army Regulation 614-200 limits a commander's ability to laterally appoint a Soldier from CPL to SP4 is noted; however, it is also noted that he cited the regulation that is currently in effect and not the version that was in effect at the time of his separation.  Regardless, this contention is a moot point as he failed to produce the order that appointed him to this rank. 

4.  His argument that the Board should dismiss the DD Form 214 and the DD Form 214 and rely on other evidence to confirm his rank is not a valid argument.  

	a.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. 

	b.  The DA Form 2-1 is a local form that provides a record of an individual's personnel management qualifications such as grade, skills, physical limitations, and assignment history and it is used primarily by personnel managers at unit level to support the Army’s personnel life-cycle function of sustainment.

5.  Although he may have served in the rank of CPL at one time, the available record does not contain any information that shows, and the applicant has not provided any orders or other evidence that conclusively shows, he was ever laterally appointed to the rank of CPL.  It is possible that the lack of an entry showing his rank of CPL on his DA Form 2-1 indicates the applicant was an acting CPL and not a laterally-appointed CPL.  In addition, the evidence of record does not show that he held the rank of CPL at the time of his release from active duty on 11 June 1981.  To the contrary, his separation orders show his rank as SP4.

6.  The key issue is what rank did he hold at the time of separation?  The answer is that in compliance with the governing regulation, the DD Form 214 he was issued for the period ending 11 June 1981 appears to correctly show his rank as SP4.  This is the rank he held at that time.  Therefore, he is not entitled to the 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 to amend the decision of the ABCMR set forth in Docket Number AR20120004544, dated 30 August 2012.



      _______ _   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)                                         AR20130006327



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ABCMR Record of Proceedings (cont)                                         AR20130006327



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