BOARD DATE: 22 July 2014
DOCKET NUMBER: AR20130018300
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 items 4a (Grade, Rate or Rank) and 4b (Pay Grade) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show sergeant (SGT)/E-5 instead of specialist (SPC)/E-4.
2. The applicant states:
a. the DD Form 214 he received after his service during Operation Desert Shield/Desert Storm is the only DD Form 214 he has for his military service and it only shows the E-4 pay grade he got after rejoining the Reserves during the Gulf War. It does not show pay grade E-5 he earned during his Simultaneous Membership Program (SMP) and duty resulting from completing Reserve Officers Training Corps (ROTC) advanced camp at Fort Lewis, WA, in 1988, where he returned to his unit as an SMP cadet and he achieved the pay grade of E-5.
b. he has attached Leave and Earnings Statements (LES) from both periods that reflect his pay grade of E-5.
c. as a member of the 263rd Supply and Service (S&S) Company in El Paso, TX, he was a cadet E-5 until entering the control group in which he later came out and accepted a lower grade with the 340th S&S Company. He served during the Gulf War as a sergeant/E-5.
3. The applicant provides:
* LESs
* DD Form 214 for the period ending 19 May 1991
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 U.S. Army Reserve (USAR) on 16 March 1987 in pay grade E-3/private first class.
3. His records contain a DA Form 4187 (Personnel Action), dated 13 February 1990, which shows he was advanced to SPC/E-4 effective 1 February 1990.
4. He was ordered to active duty in support of Operation Desert Shield/Desert Storm on 27 September 1990. He served in Southwest Asia from 30 October 1990 to 21 April 1991. On 19 May 1991, he was released from active duty (REFRAD) in the rank of SPC/E-4.
5. Item 4a of his DD Form 214 for the period ending 19 May 1991 shows the entry "SPC." Item 4b shows the entry "E4."
6. There are no promotion orders in the available records which show he was promoted to SGT/E-5 prior to his REFRAD.
7. His Statement of Service (date of preparation illegible) shows his pay grade was E-4 on 1 February 1990. It does not show he was promote to SGT/E-5.
8. His discharge orders show he was honorably discharged from the USAR on 28 March 1995 in the rank of SPC.
9. In support of his claim, he provides LESs which show his pay grade as E-5 for the following periods:
* 1-30 November 1987
* 1-30 November 1990
* 1-19 May 1991
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 preparation of the DD Form 214. It states for items 4a and 4b, enter the active duty grade of rank and pay grade at the time of separation.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he earned pay grade E-5 in 1988. However, the evidence of record shows he held the rank/pay grade of SPC/E-4 at the time of his REFRAD on 19 May 1991.
2. There is no evidence of record that shows he was promoted to SGT/E-5 prior to his REFRAD on 19 May 1991. His USAR discharge orders show he was honorably discharged in 1995 in the rank of SPC/E-4.
3. In the absence of orders promoting him to SGT/E-5, the LESs provided by the applicant (which are contradicted by the Statement of Service) are not sufficient as a basis for amending items 4a and 4b of his DD Form 214 for the period ending 19 May 1991. It appears he may have been an E-5 only when participating in the SMP with the 263rd S&S Company and reverted to his non-SMP rank and grade upon his deployment with the 340th S&S Company.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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) AR20130018300
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ABCMR Record of Proceedings (cont) AR20130018300
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