BOARD DATE: 12 May 2015
DOCKET NUMBER: AR20140016558
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 December 2005 to show his rank/grade as sergeant first class (SFC)/E-7.
2. The applicant states he was promoted to SFC/E-7 during his deployment to Iraq in support of Operation Iraqi Freedom.
3. The applicant provides:
* DD Form 214
* Orders 261-1039
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. Having prior service in the U.S. Navy, the applicant enlisted in the Regular Army on 28 February 1986.
3. On 20 November 1995, he was honorably discharged upon the completion of his required active service and transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve).
4. On 24 July 1997, the applicant voluntarily transferred to Company B, 1st Battalion, 391st Regiment, Training Support Brigade, Colchester, VT, to serve as an instructor.
5. On 1 July 1998, the applicant was promoted to the rank/grade of staff sergeant (SSG)/E-6.
6. On 12 September 1998, the applicant reenlisted in the USAR for a period of 6 years in the rank/grade of SSG/E-6.
7. Effective 10 December 1999, the applicant was reassigned to the Vermont Army National Guard in the rank/grade of SSG/E-6.
8. Orders 153-060, issued by the Office of the Adjutant General, State of New York, dated 1 June 2004, ordered the applicant to active duty in support of Operation Iraqi Freedom, effective 7 June 2004.
9. On 10 September 2004, the applicant's command requested he be promoted to the rank/grade of SFC/E-7 with an effective date of rank of 7 June 2004. On 15 September 2004, the Chief, Reserve Component Support Services Branch, U.S. Army Human Resources Command, approved the request to promote the applicant to the rank/grade of SFC/E-7 with an effective date of promotion of 7 June 2004.
10. Orders 261-1039, issued by the Office of the Adjutant General, Joint Force Headquarters, Latham, NY, dated 17 September 2004, promoted the applicant to SFC/E-7 with an effective date and date of rank of 7 June 2004.
11. On 16 December 2005, the applicant was honorably released from active duty. The DD Form 214 he was issued shows his rank/grade as SSG/E-6.
12. His record contains a DA Form 1059 (Service School Academic Evaluation Report), dated 14 June 2006, which shows he successfully completed the Tactical Information Operations Course Class 004. His rank is reflected as SFC on this document. In addition, all subsequent documents filed in his record reflect his rank as SFC.
13. On 20 December 2006, the applicant was honorably discharged from the ARNG and assigned to the Retired Reserve in the rank/grade of SFC/E-7.
14. His record is void of any derogatory evidence or any documents that show he was demoted.
15. Army Regulation 635-5 (Separation Documents), then in effect, 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 that the rank and pay grade held on the date of separation will be entered in items 4a (Grade, Rate or Rank) and 4b (Pay Grade).
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions have been noted and his supporting evidence has been carefully considered.
2. Permanent orders promoted the applicant to the rank/grade of SFC/E-7 on
7 June 2004. His record is void of any derogatory evidence or any documents that show he was demoted prior to his honorable release from active duty in support of Operation Iraqi Freedom. Therefore, his DD Form 214 should be corrected accordingly.
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 amending the applicant's DD Form 214 for the period ending 16 December 2005 by:
a. deleting from item 4a the current entry and replacing it with the entry "SFC";
b. deleting from Item 4b the current entry and replacing it with the entry "E-7"; and
c. deleting from Item 12h (Effective Date of Pay Grade) the current entry and replacing it with the entry "2004 06 07."
_______ _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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