IN THE CASE OF:	 

		BOARD DATE:	 06 May 2010 

		DOCKET NUMBER:  AR20090018948 


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 that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show his pay grade as 
E-6.

2.  The applicant states he was released from active duty in pay grade E-5.  However, he was promoted in the U.S. Army Reserve prior to being discharged.  He adds he was not given a new DD Form 214 when he was discharged from the U.S. Army Reserve.

3.  The applicant provides his DD Form 214, his promotion order, and his discharge certificate.

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 military records show that he enlisted in the Regular Army on 17 April 1967, was promoted to pay grade E-5 on 15 January 1969, and was honorably released from active duty on 20 November 1969 and transferred to the U.S. Army Reserve.

3.  His DD Form 214 shows his pay grade as E-5.

4.  On 7 December 1971, the applicant was promoted to pay grade E-6 in the U.S. Army Reserve.

5.  On 20 December 1973, the applicant was honorably discharged from the U.S. Army Reserve.

6.  Army Regulation 635-5 (Separation Documents), in effect at the time, provided that DD Forms 214 were prepared for all personnel at the time of separation from active duty.  DD Forms 214 were not to be issued to personnel who were being discharged from the Army Reserve if they were not on active duty.

DISCUSSION AND CONCLUSIONS:

1.  Since the applicant was in pay grade E-5 when he was released from active duty, his DD Form 214 reflects his proper pay grade.

2.  There are no provisions to issue DD Forms 214 to members of the U.S. Army Reserve who are discharged if they are not on active duty.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090018948



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ABCMR Record of Proceedings (cont)                                         AR20090018948



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