RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 April 2007
	DOCKET NUMBER:  AR20060009991 


	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. Gerard W. Schwartz

Acting Director

Mr. G. E. Vandenberg

Analyst

The following members, a quorum, were present:


Mr. John P. Infante

Chairperson

Ms. Susan A. Powers

Member

Mr. Qawiy A. Sabree

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show he retired in the rank and grade of lieutenant colonel (LTC) O-5.

2.  The applicant states he was assured, at the time of his separation, his records would be corrected to show his grade and rank as LTC (O-5) and a DD Form 215 (Correction of DD Form 214) would be issued.  He was told in 1988 that he was receiving retired pay as a LTC.  He did not find out he was being paid as a major (MAJ) until he inquired about related matters in 2006.  

3.  The applicant provides copies of a DD Form 214 (Certificate of Release or Discharge from Active Duty), a 31 December 1987 DD Form 215, four letters to or from the Defense Finance and Accounting Service DFAS related to his grade/pay inquires, and a photocopy of his retired identification card (ID).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 December 1987, the date of his retirement.  The application submitted in this case is dated 6 June 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The records show the applicant received a Reserve commission and served on active duty for 3 years, 2 months and 6 days with 1 year and 17 days of inactive duty.  He was called to active duty on 29 January 1966 and served continuously until his retirement.  The records indicate he was promoted to MAJ effective 29 January 1980 and to LTC 1 December 1982.

4.  Department of the Army, Military Personnel Center Orders S35-9, dated 21 February 1985, directed that the applicant be released from active duty and placed on the retired list in the rank of LTC effective 30 November 1985.

5.  In August 1985 the applicant improperly provided a sensitive classified document to a representative of Rockwell International which resulted in an investigation by the Federal Bureau of Investigation (FBI).

6.  In October 1985, as a result of the FBI investigation, the Commanding Officer Fort Rucker, Alabama continued the applicant on active duty pending a determination of whether or not the Department of Justice would prosecute the applicant for providing the classified document to Rockwell International.

7.  A Federal Grand Jury rendered an indictment against the applicant on the charge of conspiracy to defraud the United States.  The specific date of the indictment is not of record and the final outcome of the indictment and any subsequent trial are also not of record. 

8.  In December 1985 the Criminal Investigative Division (CID) initiated an investigation of possible misconduct related to two reported incidents of improper sexual related acts. 

9.  On 13 February 1986 the applicant's commanding officer issued a Letter of Reprimand for taking indecent liberties with a minor, committing adultery, and conduct unbecoming an officer. 

10.  On 15 October 1986 the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for wrongfully and without authority wearing of the Silver Star.

11.  On 6 October 1987, his commanding officer recommended that, since it appeared that the Department of Justice was going to prosecute the applicant on the conspiracy charge, NJP charges would not be initiated for the passing of a classified document and that the applicant be retired.  The commanding officer recommended that, due to his misconduct, the applicant be retired in the grade and rank of MAJ (O-4) and requested a grade determination be made.  

12.  On 4 December 1987 the members of the Army Grade Determination Review Board rendered the opinion that the applicant's acts of misconduct, committed by the applicant while serving in the rank of LTC, rendered that service unsatisfactory.  They unanimously agreed that he should be retired in the rank and grade MAJ (O-4).



13.  The Deputy Assistant Secretary, Department of the Army Review Boards and Equal Employment Opportunity Compliance and Complaints Review approved the Grade Determination Review Boards findings and recommendation on 8 December 1987.

14.  On 11 December 1987 United States Total Army Personnel Agency Orders S238-17 directed that the applicant be released from active duty and placed him on the retired list in the rank of MAJ (O-4) effective 31 December 1987.

15.  The applicant was released from active duty on 31 December 1987 and placed on the Retired List in the grade and rank of MAJ (O-4) with a date of pay grade of 3 April 1976.  He had a total of 24 years, 2 months, and 8 days of creditable active duty service with 1 year and 17 days of inactive service.

16.  On 5 July 1988 the Chief, Transition Point, Fort Rucker, Alabama submitted a request for correction of the applicant's rank, pay grade, and date of pay grade, in accordance with Army Regulation 635-5, paragraph 2-4, (to LTC (O-5) 821201) and that the applicant be provided a copy of the DD Form 215. 

17.  On 1 July 1988, a DD Form 215 was issued to correct the DD Form 214 that was issued on 31 December 1987 to indicate the applicant was separated as a LTC (O-5) with an effective date of pay grade of 1 December 1982.

18.  A DD Form 2 (Retired) (Identification Card) issued 28 September 1995 lists the applicant as a LTC (O-5).

19.  The documentation related to DFAS indicates that applicant is being paid as a MAJ (O-4).  

20.  Army Regulation 635-5 (Separation Documents) sets forth the policy and procedures for completion of the DD Form 214.  Paragraph 2-4 states, in effect, that at the Soldier's grade, rank or rate at time of separation is to be entered at the appropriate item.

21.  Army Regulation 600-8-24 (Officer Transfers and Discharges) states any officer who has been the subject of any substantiated adverse finding or conclusion from an officially documented investigation, proceeding or inquiry (except minor traffic infractions) since the officer's last promotion, will have the case forwarded to the Army Grade Determination Review Board for a grade determination to determine the highest grade the officer satisfactorily held while on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant committed several significant incident's of misconduct.  As a consequence his file was properly referred to the Grade Determination Board.  That Board determined the applicant’s misconduct warranted a finding that he had not served satisfactorily in the grade of LTC.  This determination reduced him from LTC to MAJ effective the date of his retirement.

2.  The regulation cited as justification for the correction of the DD Form 214 is insufficient to justify a restoration of his rank in and of itself.  The regulation simply states that the entries are supposed to be the rank, grade, and date of grade as of the date of separation and the applicant was a major effective the next day.

3.  The record does not contain nor has the applicant provided any documentation to show that the Grade Determination Board was overturned or that he was subsequently found to have successfully served in the rank of LTC.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 December 1987; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 December 1990.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SAP __  __JPI ___  __QAS__  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




__      John P. Infante______
          CHAIRPERSON




INDEX

CASE ID
AR20060009991
SUFFIX

RECON
 
DATE BOARDED
20070403
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
129.0000
2.

3.

4.

5.

6.