PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 4 June 2002
         DOCKET NUMBER: AR2001060679


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Ms. Regan K. Smith		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1.       The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his Certificate of Release or Discharge from Active Duty (DD Form 214) be corrected to show he was released from active duty in the rank and pay grade of Specialist Four (SPC), E-4.

3. The applicant states, in effect, that his DD Form 214 shows the wrong rank and pay grade. Applicant contends that Item 4a (Grade, Rate, or Rank) should read SPC and Item 4b (Pay Grade) should read E-4. To support his application, he provided the following: a copy of Orders 052-0007, 5^th Personnel Services Battalion, Fort Polk, Louisiana, dated 21 February 2001, which reassign the applicant to the US Army Transition Center at Fort Polk for separation processing in the rank of SPC; and, a copy of Headquarters, United States National Support Element, Operation Joint Forge, Permanent Orders 238-02 dated 30 August 2000 which awards him the Army Commendation Medal (ARCOM).

4. Records show that the applicant enlisted in the US Army Delayed Enlistment Program on 24 February 1994. He entered active duty in the Regular Army on 15 April 1994 in the rank and pay grade, Private, E-2. Item 18 (Appointments and Reductions), of applicant’s DA Form 2-1 (Qualification Records, Part II), shows that the applicant was promoted to the rank and pay grade of Private First Class (PFC), E-3, on 15 April 1995. He was later promoted to the rank and pay grade of SPC, E-4, on 15 June 1996.

5. Following completion of Basic Combat Training at Fort Sill, Oklahoma, he was assigned to the US Army Ordnance Missile and Munitions Center School, Redstone Arsenal, Alabama, for training in the Military Occupational Specialty (MOS) 27T, Avenger System Repairer. Applicant served in this MOS until
30 June 1997 when he reenlisted for four years for training in the MOS 91S, Preventive Medicine Specialist.

6. During his over seven years active duty service, applicant received the following awards and decorations: Armed Forces Service Medal, Army Commendation Medal, Army Achievement Medal (4^th Award), Army Lapel Button, Good Conduct Medal (2^nd Award), National Defense Service Medal, Armed Forces Expeditionary Medal, Army Service Ribbon, Overseas Service Ribbon, NATO Medal, and the Air Assault Badge.

7. Item I1, Section I, Enlisted Records Brief, prepared on 12 April 2001 shows applicant’s rank and Date of Rank (DOR) as: SPC 19960615.

8. Orders 052-0007, 5^th Personnel Services Battalion, Fort Polk, Louisiana, dated 21 February 2001, reassign the applicant to the US Army Transition Center at Fort Polk for separation processing in the rank of SPC.



9. The copy of Headquarters, United States National Support Element, Operation Joint Forge, Permanent Orders 238-02 dated 30 August 2000 which award him the ARCOM were presumably submitted to support his contentions that he was a SPC on his separation date. The ARCOM is already shown on his separation document.

10. Item 4a, DD Form 214, reflects applicant’s rank as PFC. Item 4b shows applicant’s pay grade to be E-3. Item 12h, Effective Date of Pay Grade, shows 1996 for the Year, 06 for the Month, and 15 for the day.

11. During review of applicant's military personnel records, a second order was found. These orders, Orders 086-0003 dated 27 March 2001, also published at Fort Polk, reassigned him to the transition center for release from active duty in the rank of PFC.

12. Because of the difference in rank shown in the standard name line on these orders, a call was made to the Defense Finance and Accounting Service (DFAS) to determine the pay grade in which the applicant was released from active duty. A DFAS representative reported that the applicant had in fact been reduced to pay grade E-3 effective 16 January 2001. The transaction demoting the applicant apparently was not entered into the military pay system until 27 March 2001, also the date the new reassignment orders were published directing him to the transition center in the rank of PFC. A copy of the instrument that directed his reduction was not available at that location.

13. A call was placed to the unit the applicant was last assigned to just before his release from active duty. It was confirmed that the applicant had been subjected to nonjudicial punishment (NJP). On 16 January 2001, he received an Article 15 under the provisions of the Uniform Code of Military Justice. Not all the facts and circumstances that led to administration of the Article 15 and the resultant punishment are known. AR 27-10, which specifies distribution instructions for Articles 15 administered specifies that for soldiers in the rank of SPC or CPL and below (prior to punishment), the original of the DA Form 2627 will be filed locally in unit nonjudicial punishment files. Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the soldier's transfer to another General Courts Martial Convening Authority, whichever occurs first. The Article 15 that was imposed has been removed from the unit's files and presumed destroyed. It is known that the applicant appealed the NJP; however, his appeal was denied.

14. A copy of the Memorandum of Telephone Conversation that was prepared after the above conversations were conducted were provided to the applicant for rebuttal or additional comments. The applicant called a member of the staff on


3 May 2002 and said that he had a copy of the Article 15 in question and that it showed that all punishments had been suspended. When asked if he would provide a copy of the Article 15 that he had in his possession, he said that he would send it by "fax." The copy that was offered by the applicant has not been received and he has not responded to the letter sent to him on 30 April 2002 that notified him that his application was in a 30-day "hold" status.

CONCLUSIONS:

1. The available evidence shows that the applicant was promoted to the rank and pay grade of SPC, E-4, with an effective date of pay grade, 15 June 1996. The record further reveals that this was the highest rank and pay grade he held while on active duty.

2. The available evidence also shows that the applicant was reduced from SPC to PFC on 16 January 2001 due to misconduct.

3. The Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the process wherein nonjudicial punishment was administered.

4. The applicant was released from active duty 30 June 2001. His DD Form 214 correctly shows his rank as PFC; however, the date of rank shown in item 12h is not correct. Item 12h should reflect 2001 as the year, 01 as the month and 16 as the day.

5. The date of rank shown on the DD Form 214 is that for the former rank of Specialist Four held by the applicant before he received nonjudicial punishment.

6. Since the applicant has not responded in the written form or by submitting the copy of the Article 15 since the 3 May 2002 telephone conversation, it is not likely that he will.

7. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all Department of the Army records, and in particular, Item 12h, applicant’s DD Form 214, should be corrected to show his correct date of rank as a PFC as follows: 2001 as the year, 01 as the month and 16 as the day.

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2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__jlp___ __aao___ __rks___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Jennifer L. Prater
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001060679
SUFFIX
RECON
DATE BOARDED	20020604
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	100.0000
2.	110.0000
3.	129.0000
4.	131.0000
5.	131.0500
6.