IN THE CASE OF:
BOARD DATE: 11 September 2008
DOCKET NUMBER: AR20080009825
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 that items 4a (Grade, Rate, or Rank) and 4b (Pay Grade) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.
2. The applicant states that he received a general discharge, not a discharge under other than honorable conditions, and that his rank was reduced to the lowest grade. He contends that during his ten year career he did not have any negative write ups and that he was a proven Soldier on the ground.
3. The applicant provides a copy of his Army Board for Correction of Military Records Record of Proceedings considered on 22 May 2008.
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 enlisted on 26 February 1992, served as a records telecommunications center operator, and attained the rank of staff sergeant.
3. On 15 April 2002, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 14, for misconduct (commission of serious offense). The unit commander cited that the applicant had been involved in a shooting in Colorado Springs, Colorado and that he admitted to pursuing an individual in his vehicle and firing his personally owned hand gun in the direction of that individual. Also, the applicant admitted to allowing individuals to use controlled substances at his place of residence and in his presence.
4. The applicant consulted with counsel, waived his rights, acknowledged that he might encounter substantial prejudice in civilian life if a general discharge were issued, and elected not to submit a statement in his own behalf.
5. On 26 July 2002, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions. He also directed that the applicant be reduced to the lowest enlisted rank per Army Regulation 600-8-19. (An unrelated, earlier ABCMR case erroneously noted the approval authority directed the issuance of a general discharge).
6. The applicants DD Form 214 shows that on 31 July 2002 he was discharged with a general discharge under the provisions of Army Regulation 635-200, chapter 14, for misconduct. Item 4a on his DD Form 214 shows the entry, PV1. Item 4b on his DD Form 214 shows the entry, E1.
7. Paragraph 10-1 (Reductions) of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states, in pertinent part, that when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, he/she will be reduced to the lowest enlisted grade.
DISCUSSION AND CONCLUSIONS:
It is noted that the applicants DD Form 214 erroneously shows he was discharged with a general discharge. However, the separation authority directed the issuance of a discharge under other than honorable conditions and, in accordance with the governing regulation, the applicant was reduced to the lowest enlisted rank. Therefore, there is no basis for granting the applicants request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___xx___ ___xx___ ____xx__ 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.
_______xxxx___________
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) AR20080009825
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ABCMR Record of Proceedings (cont) AR20080009825
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