IN THE CASE OF:	  

		BOARD DATE:	    4 November 2010

		DOCKET NUMBER:  AR20100023051 


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/grade as specialist (SPC)/E-4 instead of private first class (PFC)/E-3.

2.  The applicant states he was advanced to SP4 while out-processing from the Army in 1999; however, his DD Form 214 incorrectly shows his rank as PFC.

3.  The applicant provides a copy of a DA Form 4187 (Personnel Action) and a Department of the Army (DA) memorandum.

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's records show he enlisted in the Regular Army on 4 June 1993 and he held military occupational specialty 63B (Light Wheel Vehicle Mechanic).  On 29 April 1999, he was honorably released from active duty by reason of completion of required active service and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

3.  The DD Form 214 he was issued shows he completed a total of 6 years and 29 days of total active service with no time lost.  Item 4a (Grade, Rate, or Rank) shows "PFC" and item 4b (Pay Grade) shows "E-3."  Item 12h (Effective date of pay grade) shows "1999  03  01."  Item 18 (Remarks) contains the remarks, "Separation pay - $9177.84" and "Member is entitled to full involuntary separation pay."

4.  His record contains Orders 138-0239, issued by Headquarters, III Corps, Fort Hood, TX, dated 18 May 1999, reassigning him to the U.S. Army Transition Point, Fort Hood, with a reporting date and a date of release from active duty effective 29 April 1999.  The orders show his rank as SPC.

5.  His record also contains a memorandum from the Headquarters, III Corps, Chief, Transitions Center, dated 20 May 1999, to U.S. Army Reserve Components Personnel and Administration Center, St Louis, MO requesting, in pertinent part, correction of his DD Form 214 as follows:

* Item 4a, from "PFC" to "SPC"
* Item 4b, from "E3" to "E4"
* Item 18, from "//SEPARATION PAY - $9177.84//MEMBER IS ENTITLED TO FULL INVOLUNTARY SEPARATION PAY//" to delete all referenced to separation pay

6.  There is no indication the noted corrections were accomplished as requested.

7.  The applicant provides a copy of a DA Form 4187 from his company commander at Fort Hood to the 502nd Personnel Services Company, date stamped 22 February 1999, advancing him to "Specialist" with a date of rank (DOR) and effective date of 1 March 1999.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the rank/grade shown on his DD Form 214 should be corrected to show SPC/E-4 was carefully considered and found to have merit.

2.  The evidence of record contains a request for correction of his DD Form 214 to reflect his rank/grade as SPC/E-4 and to delete all references to entitlement to separation pay.  He also provides a copy of DA Form 4187 advancing him to SPC/E-4 with a DOR and effective date of 1 March 1999.

3.  Therefore, his DD Form 214 should be corrected to show he was released from active duty in the rank/grade of SPC/E-4.  At this time his DD Form 214 should also be corrected to delete all references to separation pay.

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.  deleting from item 4a of his DD Form 214 the entry "PFC" and replacing it with the entry "SPC";

	b.  deleting from item 4b of his DD Form 214 the entry "E-3" and replacing it with the entry "E4"; and

	c.  deleting from item 18 of his DD Form 214 the entry "//SEPARATION PAY - $9177.84//" and "//MEMBER IS ENTITLED TO FULL INVOLUNTARY SEPARATION PAY//"



      __________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)                                         AR20100023051



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ABCMR Record of Proceedings (cont)                                         AR20100023051



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