RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070017389 


	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

Ms. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 Official Military Personnel File and his Report of Transfer or Discharge (DD Form 214) be corrected by restoring his rank and pay grade to specialist four (E-4).

2.  The applicant states, in pertinent part, that his first 2 years of Army service were good, as he was advanced to the pay grade of E-4 with the minimum time in grade.  He states that the company that he was assigned to had several higher ranking noncommissioned officers and officers who were, in his opinion, doing things that were not in accordance with military policy and procedures.  He states that he was only 19 years old when he decided to write a letter to the Office of The Judge Advocate General because he believed that it was the right thing to do at that time.  He states that he was stupid enough to sign his name and rank to the letter along with his return address.  He states that within weeks of mailing the letter, the company to which he was assigned deactivated and he was transferred to another company where his name started appearing on the extra duty roster every week.  He states that he was reduced to the pay grade of E-3 for missing formation the morning after he had guard duty, and that the fact that he had guard duty the night before should have "taken care" of the situation.  He states that he was told by everyone in his chain of command that there was nothing that could be done.  He states that he was told by his commanding officer to make sure that he did not write any more letters.  

3.  The applicant states that after being transferred, he was told by his company commander that he was a "DUD," and he was put in a bay with other Soldiers who had been in military confinement or were facing various military charges.  He states that he was very immature, and that he knew that he was being singled out; therefore, he requested a transfer to Vietnam, which did not happen.  He states that he was busted to the pay grade of E-2 as a result of getting a speeding ticket and that he believed the punishment was excessive; therefore, he wrote another letter.  He states that he was stupid and that after he wrote the letter, his duty was mainly kitchen police or barracks orderly.  He states that he was told by his company commander that he should leave the military as soon as his time was up and so he did what he was told.  The applicant concludes by making reference to his post-service conduct, and stating that he is not asking for back pay or compensation in his application.  He states that he is requesting that his records be corrected as a matter of pride and honor.




4.  The applicant provides in support of his application, a letter of explanation and a copy of his DD Form 214.

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.  On 16 March 1965, the applicant enlisted in the Army at age 17, with parental consent, for 3 years, in the pay grade of E-1.  He successfully completed his training as a cable splicer.

3.  The applicant was advanced to the pay grade of E-2 on 16 July 1965; he was advanced to the pay grade of E-3 on 26 November 1965; and he was advanced to the pay grade of E-4 on 19 July 1966.

4.  Nonjudicial punishment (NJP) was imposed against the applicant on 7 September 1967, for failure to go to his appointed place of duty.  His punishment consisted of a reduction to the pay grade of E-3.

5.  On 12 December 1967, NJP was imposed against him for violating a lawful general regulation by driving his privately owned vehicle 37 miles per hour in a 25 miles per hour zone.  His punishment consisted of a reduction to the pay grade of E-2.

6.  On 23 January 1968, NJP was imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of 14 days of restriction and 14 days of extra duty.

7.  NJP was also imposed against the applicant on 26 January 1968, for failure to go to his appointed place of duty.  His punishment consisted of 14 days of restriction and 14 days of extra duty.
8.  On 15 March 1968, the applicant was honorably released from active duty (REFRAD) at the expiration of his term of service and he was transferred to the United States Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.  The DD Form 214 that he was furnished shows he was REFRAD in the pay grade of E-2.

9.  There are no letters or other documentation contained in the available records that support the applicant's contention that he wrote complaints to the office of The Judge Advocate General or that he was reprised against, or mistreated for doing so.

10.  Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of REFRAD or discharge.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record the applicant must show 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. 

2.  The applicant's contentions have been considered.  However, there is no evidence in the available record, nor has the applicant submitted any evidence that shows he was reduced in pay grade as a result of letters that he wrote to the Office of The Judge Advocate General.  The available records indicate that he was reduced in pay grade as a result of his acts of indiscipline.  

3.  The applicant had NJP imposed against him twice which resulted in his reductions to the pay grade of E-2.  He had NJP imposed against him on two other occasions which did not result in his being reduced in pay grade.  At the time of his REFRAD he had been reduced and he was serving in the pay grade of E-2.  This information was properly annotated in his official military record and on his DD Form 214.  The fact that he was young and/or immature at the time that he served in the Army is not sufficient justification for granting relief in his case. 

4.  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

__LMD__  __JRM___  __JTM__  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.





___John T. Meixell    __
      CHAIRPERSON