IN THE CASE OF:	  

		BOARD DATE:	    19 May 2010

		DOCKET NUMBER:  AR20090019760 


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, in effect, that his DD Form 214 (Certificate of Release or Discharge from Active Duty), Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) be corrected from SP4/E-4 to SGT/E5.

2.  The applicant states that he was promoted to sergeant, pay grade E-5 while he was in the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 11 April 1990.

3.  The applicant provides a 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 28 June 1984, was awarded the military occupational specialty of man portable air defense system crewmember, and was promoted to pay grade E-4 on 1 April 1986.

3.  The applicant was honorably released from active duty on 27 April 1987.  The DD Form 214 he was issued shows that he was separated in the rank of specialist, pay grade E-4.

4.  On 11 April 1990, the applicant was promoted to the rank of sergeant, pay grade E-5 in the USAR.

5.  Army Regulation 635-5 (Separation Documents), provides detailed instructions for completing separation documents, including the DD Form 214.  It provides, in pertinent part, that the DD Form 214 is to record a Soldier's history during the period covered by the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant was promoted to pay grade E-5, he was promoted after his release from active duty.

2.  Since there are no provisions to enter promotions which occur after issuance of a DD Form 214, 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)                                         AR20090019760





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ABCMR Record of Proceedings (cont)                                         AR20090019760



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