IN THE CASE OF:	  

		BOARD DATE:	        14 August 2008

		DOCKET NUMBER:  AR20080009926 


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 his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 14 November 1997 be corrected to show he was awarded military occupational specialty (MOS) 01H (Biological Sciences Assistant).  He further requests his rank and pay grade of corporal (CPL)/E-4 be restored.

2.  The applicant states, "The personnel at Fort Rucker did not understand the US Army does not have training for the MOS 01H.  You are recruited into this MOS because you have certain skill the US Army is looking for.  Therefore, this MOS is not subject to the same performance standards as other MOSs.  Most 01Hs have advance degrees BS or above in education level which entitles you to the rank of E-4."

3.  The applicant provides an Army/American Council on Education Registry Transcript, issued on 1 June 2000; an undated 9-page Resume; an undated 
3-page Society for Neuroscience 1992 Abstract Form; a 4-page program of the 7th International Catecholamine Symposium; a DA Form 4187 (Personnel Action), dated 26 September 1991; and a DD Form 1610 (Request and Authorization for TDY Travel of DOD Personnel), dated 7 May 1992. 

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 had prior enlisted service.  He enlisted in the Regular Army on 29 December 1988.  He successfully completed basic training and advanced individual training and was awarded MOS 91Q (Pharmacy Specialist).  Effective
29 April 1989, the applicant was promoted to the pay grade and rank of CPL/E-4.

3.  Headquarters, United States Army Infantry Center Orders 197-214, dated 
16 July 1991, show the applicant was awarded primary MOS 01H (Biological Sciences Assistant) and secondary MOS 91Q (Pharmacy Specialist) effective 
27 June 1991.  There is no evidence in his records that show MOS 01H was withdrawn prior to his discharge.

4.  On 7 August 1992, the applicant was convicted, contrary to his pleas, by a special court-martial of indecent exposure and committing an indecent act.  His sentence consisted of a reduction to the grade and rank of private (PVT)/E-1, confinement for three months, and a bad conduct discharge.

5.  On 18 November 1992, the applicant was placed on involuntary excess leave pending his appellate reviews.

6.  On 18 October 1993, the U.S. Army Court of Military Review (now the U.S. Army Court of Criminal Appeals (USACCA)) affirmed the approved findings and the sentence.  The Court of Military Appeals (now the Court of Appeals for the Armed Forces) remanded the case.  On remand, the USACCA only affirmed so much of the sentence that provided for a bad conduct discharge and reduction to the grade and rank of PVT/E-1.

7.  On 14 November 1997, the applicant was discharged with a bad conduct discharge under the provisions of chapter 3 of Army Regulation 635-200 (Enlisted Personnel) by reason of court-martial in the rank of E-1.  He had completed a total of 8 years, 10 months, and 27 days of creditable active military service.  His DD Form 214 for the period ending 14 November 1997 shows the entry "91Q1O PHARMACY SPECIALIST 4 YRS 4 MOS" in block 11 (Primary Specialty).

8.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 11 October 2006, the ADRB voted to upgrade his characterization of service to a general under honorable conditions discharge.

9.  In accordance with Title 10 of the U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction by a court-martial convened under the UCMJ.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's DD Form 214 with the ending period 14 November 1997 shows MOS 91Q10 and that he performed in the specialty for 4 years and
4 months.  Evidence of records shows he was awarded MOS 01H effective 27 June 1991.  Therefore, his DD Form 214 should be amended to add MOS 01H. 

2.   The applicant contends that his rank of CPL should be restored based upon him returning to his unit and continuing to work as a 01H.  However, evidence of record shows that he was reduced in rank to E-1 as a result of being convicted by a special court-martial.  There is no evidence, and the applicant has not provided evidence, to show why his rank should be restored based on working in his MOS after being reduced by a special court-martial.  The USACCA affirmed his reduction to E-1.  There is no basis for granting his request to restore his pay grade to E-4.  Therefore, his pay grade of E-1 is correct on his records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xx____  ___xx___  ___xx___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry "91Q1O PHARMACY SPECIALIST 4 YRS 4 MOS" in item 11 of his DD Form 214; and 

	b.  amending his DD Form 214 in item 11 to add "91Q1O PHARMACY SPECIALIST 2 YRS 6 MOS" and "01H1O BIOLOGICAL SCIENCES ASSISTANT 1 YR 5 MOS."

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 restoring his pay grade and rank to CPL/E-4.



      __________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)                                         AR20080009926





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080009926



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1