IN THE CASE OF:	  

		BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140007822 


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) to show his rank as corporal (CPL) instead of specialist four (SP4).  

2.  He states he should have been laterally transferred from SP4/pay grade E-4 to CPL/pay grade E-4 in 1983 at the end of his enlistment.  The record indicates he was an SP4 at the end of his enlistment.  When he arrived at Fort Hood, TX, in August or September 1982, he was an SP4.  He was subsequently placed in an "acting hard stripe" CPL position.  He was a military police (MP) patrol supervisor/fire team leader/assistant squad leader during his time at Fort Hood.  He was informed by his chain of command that, based on his leadership skills and training, up to or after 1 year he would automatically be laterally transferred to "hard stripe" CPL.  

3.  He provides:

* letters of commendation, appreciation, and recommendation
* DA Form 1315 (Reenlistment Data)
* DA Form 705 (Army Physical Readiness Test Scorecard)
* weapons qualification scorecard
* DD Form 214
* DD Form 215 (Correction to DD Form 214)
* DD Form 303A (Certificate in Lieu of Lost or Destroyed Discharge)


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 October 1980, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty (MOS) 95B (MP).  

3.  Effective 30 April 1982, he was promoted to SP4.  

4.  Following a tour of duty in Germany, on 20 September 1982, he was assigned to the 502nd MP Company, Fort Hood, TX. 

5.  On 8 November 1982, his company commander appointed him as an acting CPL for an indefinite period in accordance with Army Regulation 600-200 (Enlisted Personnel Management System) for the purpose of performing duties as a noncommissioned officer (NCO) for the 502nd MP Company.  

6.  On 28 October 1983, he was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  The DD Form 214 issued at that time shows his rank was SP4.  

7.  Effective 28 October 1986, he was honorably discharged from the USAR.  His discharge orders show his rank was SP4.

8.  His Official Military Personnel File is void of documentation showing he received a lateral appointment to the rank of CPL.  

9.  Army Regulation 600-200, in effect at the time, prescribed procedures for promotion and reduction of enlisted personnel.  


	a.  Chapter 2 (Personnel Classification), Section X (Lateral Appointments), provided the criteria for lateral appointment from SP4 to CPL.  Lateral appointments were to be announced in orders.  A lateral appointment from specialist to NCO within the same pay grade, without local selection board action or recommended-list status, was authorized under the following conditions:

		(1)  When the standards of grade authorization were changed to delete provisions for specialist in the pay grade and MOS.  

		(2)  A Soldier in pay grade E-4 could be laterally appointed from SP4 to CPL even though the primary MOS did not allow the NCO rank at the current pay grade.  To be eligible, the Soldier was required to–

* Be assigned against, and for at least 60 days actually work in, an NCO position which is granted for his career progression MOS at a pay grade higher than that currently held.
* Satisfy the military education provisions of Army Regulation 351-1 (Individual Military Education and Training)

	b.  Chapter 7 (Promotions), Section VI (Appointment of Acting NCOs), authorized company, troop, battery, and separate detachment commanders to appoint qualified Soldiers as acting CPLs, E-4, and sergeants, E-5.  The Soldiers were to serve in vacant positions in their units at their present or higher grade.  An acting NCO appointed under these provisions had all of the authority of a regularly appointed NCO of the same grade.  An acting NCO's status automatically terminated upon reassignment to another unit or under one of three other conditions.  

	c.  Review of the regulation failed to reveal any provisions authorizing the "automatic" lateral transfer of an acting NCO by reason of time served as an acting NCO.  

DISCUSSION AND CONCLUSIONS:

1.  When the applicant was released from active duty and transferred to the USAR, i.e., upon reassignment to another unit, his acting status as a CPL would have automatically terminated.  

2.  There is no evidence indicating orders were published laterally appointing him from SP4 to CPL.  Lateral appointment of an acting CPL was not required, and it appears this did not happen in his case.  Because he was not actually laterally appointed to CPL, his DD Form 214 properly shows his rank was SP4.  

3.  In view of the foregoing, 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 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)                                         AR20140007822



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ABCMR Record of Proceedings (cont)                                         AR20140007822



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