IN THE CASE OF:
BOARD DATE: 28 AUGUST 2008
DOCKET NUMBER: AR20080006262
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 his rank and pay grade shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from private (PVT)/E-1 to specialist four (SP4)/E-4.
2. The applicant essentially requests that his rank be corrected so that his headstone will read SP4 instead of PVT.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued at the time of his discharge under honorable conditions on 1 June 1973, a certificate awarding him the Air Medal for meritorious achievement while participating in aerial flight in Vietnam from 8 September 1971 to 28 September 1971, and a letter, dated 5 March 2008, from the Richland County, Ohio Veterans Service Commission 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 applicants 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 applicants 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 he enlisted in the Regular Army on 28 August 1970. He completed initial entry training and he served in the Republic of Vietnam from 15 March 1971 to 19 January 1972. He served at Fort Campbell, Kentucky until he was discharged under honorable conditions.
3. The available evidence shows that on 6 November 1979, the Army Discharge Review Board upgraded his general discharge to an honorable discharge. However, his rank was not changed.
4. The applicant's military records show the highest rank that he achieved was SP4/E-4, effective 20 July 1971. However, on 13 October 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go without authority to his place of duty on or about 10 October 1972. His punishment consisted, in part, of reduction in rank and pay grade from SP4/E-4 to private first class (PFC)/E-3. The applicant appealed this punishment; however, on 8 December 1972, the applicant's appeal was denied.
5. On 24 January 1973, the applicant accepted NJP under Article 15 of the UCMJ for willfully disobeying a lawful order from his superior noncommissioned officer on or about 16 January 1973. His punishment consisted, in part, of reduction in rank and pay grade from PFC/E-3 to PVT/E-2, which was suspended for a period of 60 days. However, on 2 February 1973, the applicant's suspended reduction to PVT/E-2 was vacated.
6. On 20 March 1973, the applicant accepted NJP under Article 15 of the UCMJ for absenting himself without proper authority from his unit on or about 5 March 1973, and remaining so absent until on or about 12 March 1973. His punishment consisted, in part, to a reduction in rank and pay grade from PVT/E-2 to PVT/E-1.
7. Army Regulation 635-5 (Separation Documents) has consistently directed that a Soldier's rank and pay grade at the time of release from active duty or discharge will be entered on the DD Form 214.
DISCUSSION AND CONCLUSIONS:
While the applicant was in fact promoted to SP4/E-4 with a date of rank of
20 July 1971, he was subsequently reduced in rank three times, and the rank and pay grade of PVT/E-1 shown on his DD Form 214 accurately reflects his rank and pay grade at the time of his discharge. 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) AR20080006262
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ABCMR Record of Proceedings (cont) AR20080006262
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