BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20130021971 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show her rank as private first class, pay grade E-3 at the time of her discharge.

2.  The applicant states her DD Form 214 is in error and should be corrected.

3.  The applicant provides copies of:

* DD Form 214 (Member 4 Copy)
* DA Form 4187 (Personnel Action), Advancement to private, pay grade E-2
* DA Form 4187, Advancement to private first class, pay grade E-3

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant’s DD Form 214 to show her correct rank and date of rank.  He further requests that she be paid any monies due her as a result of correcting this error.

2.  Counsel states the applicant’s military records show she entered active duty as a U.S. Army Reserve (USAR) Soldier.  She served for a period of 2 years and 7 days, during which she was advanced to private, E-2 and to private first class, E-3.  Counsel further states she was discharged with an honorable characterization of service.  Based on this service, counsel effectively argues that her DD Form 214 should be corrected to show her proper rank.

3.  Counsel provides no additional documentation.

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 25 October 2006, the applicant entered active duty as a USAR Soldier.

3.  A DA Form 4187 shows that the applicant was advanced to private, pay grade E-2 with an effective date and a date of rank of 4 May 2007.

4.  A DA Form 4187 shows that the applicant was advanced to private first class, pay grade E-3, with an effective date and date of rank of 21 September 2007.

5.  On 14 January 2008, the applicant’s commander notified her of his intention to separate her under the provisions of Army Regulation 635-200, chapter 5-17 due to other designated physical or mental conditions.  He based this action on the applicant having been diagnosed with a prolonged depressed mood.

6.  The commander subsequently recommended the applicant’s discharge as discussed in the preceding paragraph.  In his recommendation, he stated the applicant had no record of court-martial or nonjudicial punishment (NJP).

7.  On 30 January 2008, the appropriate authority approved the recommendation and directed the applicant be discharged with an honorable characterization of service.

8.  On 1 February 2008, the applicant was accordingly discharged.  However, her rank was shown as private, pay grade E-1.  She completed 2 years and 7 days of creditable active duty service.



9.  Army Regulation 635-200 (Personnel Management) paragraph 5-17 provides for the separation of Soldiers due to other designated physical or mental conditions, not amounting to a physical disability.  Such conditions may include, but are not limited to, disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.

10.  Title 31, U.S. Code, section 3702, is the 6-year barring statute for payment of claims by the government.  In essence, if an individual brings a claim against the government for monetary relief, the barring statute states the government is only obligated to pay the individual 6 years from the date of approval of the claim.  Attacks to the barring statute have resulted in litigation in the U.S. Court of Federal Claims.  In the case of Pride versus the United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of her DD Form 214 to show her rank as private first class, pay grade E-3 at the time of her discharge.

2.  The available evidence clearly shows that the applicant was advanced during her period of active duty to the ranks of private, pay grade E-2 and private first class, pay grade E-3.

3.  At the time of the commander’s recommendation to discharge the applicant due to her medical/mental condition, he clearly stated that she had not been court-martialed or given NJP.  There is no available evidence showing she had ever been reduced for cause.  Therefore, it must be assumed that the rank and pay grade shown on her DD Form 214 is an error that should be corrected.

4.  So as to preclude any further injustice, the applicant's military pay records should be audited by the Defense Finance and Accounting Service (DFAS) to determine if the error in her pay grade caused any loss of pay.  If so, and notwithstanding the barring statute, she should be reimbursed any and all monies resulting from this correction of records.

5.  In view of the above, the applicant's request should be granted. 



BOARD VOTE:

___X_____  ___X_____  _X__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing on her DD Form 214 her rank and pay grade as private first class, E-3 with an effective date of pay grade of 21 September 2007; and

	b.  paying her any monies that may become due as a result of this correction.




      _________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)                                         AR20130021971





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ABCMR Record of Proceedings (cont)                                         AR20130021971



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