IN THE CASE OF:	  

		BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140000391 


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 his rank and grade be changed to major (MAJ)/pay grade O4 on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 30 November 1981.

2.  The applicant states his DD 214 is incorrect.

3.  The applicant provides:

* U.S. Army Military Personnel Center Orders S144-4, dated 27 July 1981
* his DD Form 214 

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.  He previously completed 3 years, 7 months, and 18 days of active service in the Regular Army in an enlisted status.

3.  On 19 January 1965, he was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) and entered active duty.  He was promoted to captain (CPT) on 19 July 1967.

4.  On 29 November 1975, he was released from active duty (REFRAD).  His 
DD Form 214 provides the following information in:

* item 9a (Type of Separation) - Relief from Active Duty
* item 9c (Authority and Reason) - Chapter 3, Section XVII, Army Regulation 635-100 (Personnel Separations, Officer Personnel), Separation Program Designator (SPD) LGC
* item 9d (Effective Date) - 75 11 29 (29 November 1975)
* item 18a (Net Active Service This Period) - 10 years, 10 months, and 
5 days)
* item 18c (Total Active Service) - 14 years, 5 months, and 23 days
* item 18e (Total Service for Pay) - 14 years 5 months, and 23 days

5.  On 23 January 1976, he enlisted in the Regular Army for 3 years in pay grade E-5.  On 4 December 1978, he immediately reenlisted for 3 years.

6.  On 17 January 1978, he was promoted to MAJ as a Reserve commissioned officer of the Army.  

7.  On 1 December 1980, he was promoted to sergeant first class (SFC)/pay grade E-7 in the Regular Army.  

8.  U.S. Army Military Personnel Center Orders S144-4, dated 27 July 1981, retired him from active service and discharged him from his enlisted status for convenience of the Government.  On the date following retirement he was placed on the Retired List , transferred to the Retired Reserve, and assigned to the USAR Control Group (Retired).  The effective date was 30 November 1981 and the retired grade was MAJ.  The grade for which household goods (HHG) weight allowance was authorized was SFC.

9.  A DA Form 3713 (Data for Retired Pay), dated 27 July 1981, provided the following information:

* item 2 (Active Duty Grade) - SFC
* item 22 (Voluntary Retirement Section 1333, 3925,3926) - 20 years, 
4 months, and 1 day
* item 25 (Section 1405 (Applicable to voluntary and mandatory retirement)) - 20 years, 4 months and 3 days

10.  An addendum to the DA Form 3713 shows his status as of 30 September 1981 as follows:

* Statute:  3911
* Retired Pay Grade: MAJ
* Years of Service for Percentage Purposes: 20 years, 2 months, and 
3 days
* Years of Service for Basic Pay Purposes: 20 Years and 4 months

11.  On 30 November 1981, he was discharged from an enlisted status to retire as an officer.  His DD Form 214 with an effective date of 30 November 1981 shows his rank as SFC and his pay grade as E-7.

12.  A letter, dated 6 October 1982, from the U.S. Army Military Personnel Center notified the applicant that in accordance with the Court of Claims judgment in his case, filed on 13 August 1982, appropriate action had been taken to certify he was released from active duty in the grade of CPT on 30 November 1981.  His records had been corrected to show he had been credited for constructive active duty from the date of his original release on 23 November 1975 to 28 February 1977.  A DD Form 215 (Correction to DD Form 214) was to be forwarded to him. In addition, the Defense Finance and Accounting Service had been advised of the change and would adjust his retired pay account accordingly.

13.  U.S. Army Military Personnel Center Orders S193-10, dated 6 October 1982, amended a portion of U.S. Army Military Personnel Center Orders S144-4, dated 27 July 1981, to read "You are retired from active service, released from assignment and duty, and, on the date following release, placed on the Retired List.  Grade HHG weight allowance authorized: CPT."

14.  A DA Form 3713, dated 6 October 1982, changed the following items:

* item 2 - changed to CPT
* item 22 - changed to 20 years and 6 months
* item 25 - changed to 20 years and 6 months

15.  Item 36 (Remarks) of the DA Form 3713, dated 6 October 1982, contains the following entry:  "DAO S144-4, dtd 27 Jul 81 amended by DAO S193-10, dtd 
6 Oct 82 to show that pursuant to the judgment of the US Court of Claims Number 650-81C [applicant v. the United States] filed 13 Aug 82 officer is REFRAD in the gr of CPT in lieu of REFRAD in the gr of SFC."
16.  A DD Form 215, dated 22 June 1983, made the following corrections to his DD Form 214 with an effective date of 29 November 1975:

* item 9a - Retirement
* item 9c - Title 10 U.S. Code Section 3911
* item 18a - 16 years, 10 months, and 12 days
* item 18c - 20 years and 6 months
* item 18e - 20 years and 6 months 

17.  Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214.  This regulation states that the active duty grade or rank and pay grade at the time of separation will be entered in Item 4a (Grade, Rate, or Rank) and 4b (Pay Grade) of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should reflect his rank as MAJ and his pay grade as O4.

2.  U.S. Army Military Personnel Center notified the applicant that in accordance with the Court of Claims judgment in his case, filed on 13 August 1982, appropriate action had been taken to certify he was released from active duty in the grade of CPT on 30 November 1981.  He was placed on the Retired List in the grade of MAJ with an effective date of 30 November 1981.

3.  The Soldier's active duty grade or rank and pay grade at the time of separation is entered on his or her DD Form 214.  There is no evidence the applicant was serving as a MAJ at the time of his release from active duty.  Therefore, there is no basis for entering MAJ, pay grade O-4 on his 
DD Form 214.

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)                                         AR20140000391



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000391



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1