IN THE CASE OF:	  

	BOARD DATE:	  31 JULY 2008

	DOCKET NUMBER:  AR20080005373 


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 the vacation of his suspended reduction from sergeant (SGT)/E-5 to specialist four (SP4)/E-4 be overturned, and that he be promoted to staff sergeant (SSG)/E-6. 

2.  The applicant essentially states that the record is in error or unjust because he was not present when his suspended reduction from SGT/E-5 to SP4/E-4 was vacated, and that the charge which brought about the vacation of his suspended reduction was a bogus charge that was created while he was out-processing from Korea.  He also states that his reduction from SGT/E-5 to SP4/E-4 was only suspended for 90 days, but that it was vacated after 105 days, or well after the suspension should have been remitted without further action.  He further states that the vacation of his suspended reduction did not get entered into his military records until after 30 September 1983, and that it effectively prevented him from further reenlistments and reaching retirement.  Additionally, he states that he never knew why he was reduced in rank, and that his commanding officer was not sure as well, but that his commander just said he was told to effect his reduction anyway.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to him on 30 July 1984 and DA Form 2-1 (Personnel Qualification Record – Part II), portions of a medical examination which essentially reflected that his rank was still SGT/E-5 in September 1983, a partially obscured DA Form 2627-2 (Record of Supplementary Action Under Article 15, Uniform Code of Military Justice [UCMJ]), and a self-authored letter addressed to a Member of Congress in support of this application.  
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 after having prior service in the Regular Army from 5 July 1971 to 1 July 1974, he reenlisted on 25 October 1974 in the rank of SP4/E-4.  He was promoted to SGT/E-5 with a date of rank of 17 June 1975.  He continued to serve in the Aviation branch until he completed a recruiting course and began serving as a recruiter in November 1982.

3.  On 4 April 1983, the applicant accepted nonjudicial punishment under Article 15 of the UCMJ for, with intent to deceive, making a verbal statement which was wholly false and known by him to be false.  His punishment consisted of reduction in rank from SGT/E-5 to SP4/E-4 and a forfeiture of $100.00 pay per month for 2 months, both of which were suspended for 4 months.

4.  The applicant's military records contained a DA Form 2627-2, which, based upon the applicant's date of rank to SP4/E-4, shows that on 22 July 1983, the applicant's suspended reduction from SGT/E-5 to SP4/E-4 and a forfeiture of $100.00 pay per month for 2 months was vacated, and the unexecuted portions of his punishment was duly executed.  This vacation was based on the applicant willfully disobeying a lawful order from his superior noncommissioned officer on 19 July 1983.  

5.  The applicant departed his recruiting command on 25 July 1983, and began serving a tour in Korea on 29 July 1983.  On 30 July 1984, the applicant was honorably discharged, presumably for exceeding the retention control point for a Soldier in the rank and pay grade of SP4/E-4.

6.  The applicant essentially stated that the record is in error or unjust because he was not present when his suspended reduction from SGT/E-5 to SP4/E-4 was vacated, and that the charge which brought about the vacation of his suspended reduction was a bogus charge that was created while he was out-processing for Korea.  He also stated, in effect, that his reduction from SGT/E-5 to SP4/E-4 was only suspended for 90 days, but that it was vacated 105 days, or well after the suspension should have been remitted without further action.  He further essentially stated that the vacation of his suspended reduction did not get entered into his military records until after 30 September 1983, and that it effectively prevented him from further reenlistments and reaching retirement.  Additionally, he stated that he never knew why he was reduced in rank, and that his commanding officer was not sure as well, but that his commander just said he was told to effect his reduction anyway.

7.  Army Regulation 27-10 (Military Justice), in effect at the time, provided that failure to provide notification and an opportunity to appear or to otherwise respond to the basis of a proposed vacation may result in the record of punishment being inadmissible in a subsequent court-martial, but will not, by itself, render a vacation action void.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the vacation of his suspended reduction from SGT/E-5 to SP4/E-4 should be overturned, and that he should be promoted to SSG/E-6. 

2.  The applicant's contention that his reduction from SGT/E-5 to SP4/E-4 was only suspended for 90 days was considered, but not found to have any merit.  The evidence of record clearly shows that his punishment was actually suspended for 4 months.  Additionally, although the applicant contends that he was not present when his suspended reduction was vacated, failure to provide notification and an opportunity to appear or to otherwise respond to the basis of a proposed vacation does not, by itself, render a vacation action void.  As a result, there is no basis for overturning his reduction in rank from SGT/E-5 to SP4/E-4.   

3.  Although the applicant contends that he should have been promoted to SSG/E-6, he did not provide any evidence, and there is no evidence in his military records which shows that he appeared before a promotion board, that the promotion board proceedings were approved by the promotion authority, and that he was placed on a promotion standing list for promotion to SSG and met a promotion point cutoff score for promotion to SSG while he was serving in the rank of SGT.  As a result, there is no basis for promoting him to SSG/E-6.

4.  While it could not be conclusively established when the applicant's reduction from SGT/E-5 to SP4/E-4 was posted to his military records, the fact remains that his suspended reduction from SGT/E-5 to SP4/E-4 appears to have been accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.  

5.  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.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080005373



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ABCMR Record of Proceedings (cont)                                         AR20080005373



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