RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  25 January 2008
	DOCKET NUMBER:  AR20070010175 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. David K. Haasenritter

Chairperson

Mr. James R. Hastie

Member

Mr. Edward E. Montgomery

Member

	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 reconsideration of his earlier request for correction of his records to show the effective date of pay grade to specialist (SPC)/E4 as 8 January 2001, the date the Special Court-Martial convening authority approved his sentence for reduction to the grade of SPC/E4, instead of 9 June 2000, as shown in Item 12h (Effective Date of Pay Grade) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that during out-processing, the Transition Point listed his effective date of pay grade on a DD Form 214 Worksheet as 8 January 2001, the date the Court-Martial convening authority approved his sentence.  However, soon after his discharge, he received his DD Form 214 and discovered that his effective date of pay grade was changed to 9 June 2000.  He believes 8 January 2001 should be the correct date of his reduction from sergeant first class (SFC)/E-7 to SPC/E4.  He also states that he contacted the Defense Finance and Accounting Service (DFAS)-Denver and provided that office with a DD Form 214 Worksheet regarding correction of his date of pay grade, but was told the DD Form 214 Worksheet is invalid and that he requires a DD Form 215 (Correction to the DD Form 214) to affect any changes to his DD Form 214.

3.  The applicant provides a copy of Special Court-Martial Order Number 3, dated 8 January 2001; a copy of his DD Form 214, dated 9 February 2001; a copy of DD Form 214 Worksheet, dated 9 February 2001; and a copy of DFAS-Denver Letter, dated 7 June 2005, in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number in Docket Number AR20060004667, dated 19 December 2006.

2.  The applicant did not submit any new evidence that warranted consideration by the Board.  However, his effective date of reduction from SFC/E-7 to SPC/E-4 appears to be listed incorrectly on his DD Form 214.

3.  The applicant's records show that he enlisted in the Regular Army on 16 June 1976.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 51H (Construction Engineer).  He 
was promoted to the rank of specialist/pay grade E-4 on 1 January 1978.  He was released from active duty on 22 June 1979 and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).   

4.  On 16 June 1982, the applicant enlisted in the USAR for a period of 6 years in the rank of specialist/pay grade E-4.  He subsequently had a series of reenlistments in the USAR and the Active Guard Reserve (AGR) program.  He was promoted to sergeant first class (SFC)/E-7 on 1 August 1997.  

5.  On 27 September 1997, the applicant tested positive for methamphetamines.

6.  On 28 August 1998, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for the wrongful use of methamphetamine, a controlled substance.  His punishment consisted of a forfeiture of $1,196.00 per month for two months and 45 days of extra duty.

7.  On 22 January 2000, the applicant participated in another command directed urinalysis and tested positive for Tetrahydrocannabinol.  

8.  On 9 June 2000, the applicant pled guilty at a Special Court-Martial to one specification of wrongfully using marijuana, a controlled substance, between 22 December 1999 and 22 January 2000.  The Court-Martial sentenced him to forfeiture of $600.00 pay per month for 6 months, hard labor without confinement for 60 days, reduction to the lowest enlisted grade, and a bad conduct discharge. 

9. Headquarters, 25th Infantry Division (Light) and U.S. Army Hawaii, Schofield Barracks, Hawaii, Special Court-Martial Order Number 3, dated 8 January 2001, shows that the applicant’s sentence was approved and ordered executed, but the execution of the part of the sentence pertaining to the bad conduct discharge, hard labor without confinement for sixty days, and reduction to the grade beyond specialist four/E-4 was suspended for 12 months, at which time, unless sooner vacated, the suspended part of the sentence would be remitted without further action.

10.  On 9 February 2001, the applicant was honorably discharged from the USAR, under the provisions of chapter 4 of Army Regulation 635-200 (Personnel Separations), for completion of required active service, in the rank of specialist/ E-4 after completing 20 years, 4 months, and 21 days of Active Federal Service.  The DD Form 214 he was issued at the time of discharge shows in item 4a (Grade, Rate or Rank) the entry "specialist"; in item 4b (Pay Grade) the entry       "E-4", and in item 12h (Effective Date of Pay Grade) the entry "9 June 2000."

11.  On 7 March 2001, the Army Reserve Personnel Command, St. Louis, Missouri, notified the applicant that he had completed the required years of service to be eligible for retired pay upon applicant's age at 60 (20-Year Letter).

12.  On 2 February 2001, U.S. Army Reserve Personnel command, St. Louis, Missouri, published Orders D-02-80023, discharging the applicant from the USAR/AGR effective 9 February 2001, in the grade of SPC/E-4.

13.  On 27 July 2005, U.S. Army Human Resources Command, St. Louis, Missouri, published Orders D-02-800023R revoked so much of Orders D-02-800023, dated 2 February 2001, that released him from the USAR on 9 February 2001. 

14.  On 27 July 2005, U.S. Army Human Resources Command, St. Louis, Missouri, published Orders P-07-591117, transferring the applicant to the Retired Reserve effective 1 January 2004 in the grade of specialist four/E4 with a date of rank of 9 June 2000.

15.  The Manual for Courts-Martial, Appendix 2, Subchapter VIII, Section 857, Article 57 (Effective Date of Sentences), shows under paragraph a (1) (A) any forfeiture of pay or allowances or reduction in grade that is included in a sentence of a court-martial takes effect on the earlier of: (A) the date that is 14 days after the date on which the sentence is adjudged; or (B) the date on which the sentence is approved by the convening authority.  

16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  In pertinent part it states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  Item 12h (Effective Date of Pay Grade) is to be entered from the most recent promotion order (or reduction instrument).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his effective date of pay grade should be corrected to show 8 January 2001, the date the Special Court-Martial convening authority approved his sentence for reduction to the grade of SPC/E4.  


2.  Evidence of record shows that the applicant was adjudged guilty by a Special Court-Martial on 9 June 2000 for the wrongful use of marijuana and that his punishment included forfeiture of pay, hard labor without confinement, a bad conduct discharge, and reduction from the grade of SFC/E7 to the grade of private (PVT)/E1.  However, when the convening authority approved the sentence on 8 January 2001, he suspended, among other punishment, the portion of the sentence pertaining to reduction beyond the grade of SPC/E-4 for 12 months.

3.  Any reduction in grade that is included in a sentence of a Court-Martial takes effect on the earlier of the date that is 14 days after the date on which the sentence is adjudged (9 June 2000); or the date on which the sentence is approved by the convening authority (8 January 2001).  Therefore, the applicant's effective date of rank to SPC/E-4 should be 22 June 2000, which is 14 days after the date the sentence was adjudged. 

4.  In view of the foregoing, the applicant is entitled to correction of his records to show his effective date of pay grade to SPC/E-4 as 22 June 2000.  He should also, if eligible, be provided all back pay and entitlements for the period 9 June 2000 through 21 June 2000 in the grade he held prior to his reduction to 
SPC/E-4.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__dkh___  __jrh___  __eem___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20060004667, dated 19 December 2006.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting Item 12h (Effective Date of pay Grade) of the applicant's DD Form 214 to show the entry 2000 06 22 (22 June 2000).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of Item 12h (Effective Date of pay Grade) of the applicant's DD Form 214 to show the entry 2001 01 08 (8 January 2001).




						David K. Haasenritter
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.