IN THE CASE OF:
BOARD DATE: 6 May 2014
DOCKET NUMBER: AR20130013982
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 records to show he held the rank/grade of specialist four (SP4)/E-4.
2. He states he was reduced from SP4/E-4 to private two (PV2)/E-2 and the higher rank was not restored to him before he was discharged. He states he did nothing wrong and all of his awards should show his rank as SP4.
3. He provides no additional evidence.
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. On 29 March 1983, the applicant enlisted in the Regular Army. He completed initial entry training and he was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).
3. A DA Form 4187 (Personnel Action), dated 21 September 1983, shows he was promoted (i.e., advanced) to PV2/E-2 effective 1 October 1983.
4. Item 4 (Assignment Consideration) of his DA Form 2-1 (Personnel Qualification Record Part II) contains a lined-through entry showing he was not recommended for further service (i.e., barred from reenlistment) effective 1 March 1984.
5. Item 18 (Appointments and Reductions) of his DA Form 2-1 contains a lined-through entry showing he was advanced to private first class (PFC)/E-3 effective 29 March 1984.
6. A 426th Supply and Service Battalion, 101st Airborne Division (Air Assault), 1st endorsement, dated 28 November 1984, subject: Removal of Bar to Reenlistment, shows his acting battalion commander recommended approval of removal of a bar to reenlistment. The acting commander stated the applicant's duty performance had greatly improved and had been outstanding for the last 7 months. The acting commander stated the applicant had taken steps to solve his financial situation as evidenced by receipt of no letters of indebtedness since January 1984. His records show the request for removal of his bar to reenlistment was approved by the Headquarters, Division Support Command, 101st Airborne Division (Air Assault), on 10 December 1984. The approving commander directed removal and destruction of the Bar to Reenlistment Certificate and total obliteration of the remark "not recommended for further service" from the applicant's DA Form 2-1.
7. A Company D, 426th Supply and Service Battalion, 101st Airborne Division (Air Assault), memorandum, dated 27 November 1984, subject: Request for Approval of De Facto Status, shows his company commander requested approval of de facto status for the applicant's erroneous promotion to PFC/E-3 for the period 29 March through 30 November 1984. The company commander stated that in accordance with Army Regulation 600-200 (Enlisted Personnel Management), paragraph 7-5f, de facto status would be based on the following:
* promotion orders were published
* pay at the higher grade was received
* the applicant accepted the promotion in good faith
* the higher grade was held
* the applicant actually performed duties in the higher grade
8. On 10 January 1985, the request for de facto status was approved.
9. U.S. Army Military Personnel Center (MILPERCEN) Orders D120-26, dated 25 June 1985, retired the applicant because of physical disability effective 23 July 1985 and placed him on the Temporary Disability Retired List (TDRL) effective 24 July 1985. These orders show his rank as PV2.
10. On 23 July 1985, he retired and was placed on the TDRL as ordered. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in:
* item 4a (Grade, Rate, or Rank) PV2
* item 4b (Pay Grade) E-2
* item 12h (Effective Date of Pay Grade) 1 October 1983
11. U.S. Total Army Personnel Command (previously known as MILPERCEN) Orders D75-20, dated 12 April 1990, removed him from the TDRL and discharged him effective 12 April 1990. These orders show his rank as PV2.
12. His records are void of documentation indicating he was advanced to
SP4/E-4.
13. Army Regulation 600-200, in effect at the time, provided the requirements for enlisted promotions.
a. Paragraph 7-5f provided for granting de facto status to a Soldier who had been erroneously promoted provided certain criteria were met. Paragraph 7-6 provided that a Soldier who was not qualified for reenlistment would not be promoted.
b. Paragraph 7-13 stated, in part, a Soldier must hold the rank/grade of PFC/E-3 to be advanced to SP4/E-4.
DISCUSSION AND CONCLUSIONS:
1. The available evidence does not support the applicant's request for correction of his records to show he held the rank/grade of SP4/E-4.
2. His records show he was erroneously promoted to PFC/E-3 and he was granted de facto status for this erroneous promotion for the period 29 March through 30 November 1984. It appears that his promotion to PFC/E-3 was erroneous because he was barred from reenlisting. Although the bar to reenlistment was later removed, there is no evidence showing he was properly
advanced to PFC/E-3 at a later date prior to being placed on the TDRL. Because he never properly held the rank/grade of PFC/E-3, there was never a basis for considering him for advancement to SP4/E-4.
3. His records show the highest rank/grade he properly held was PV2/E-2. In the absence of evidence showing he was advanced to a higher rank/grade, there is no basis for granting 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 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.
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