IN THE CASE OF:	  

		BOARD DATE:	        13 JANUARY 2009

		DOCKET NUMBER:  AR20080014286 


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 military records be corrected to show that his rank and pay grade at the time of his discharge was specialist (SPC)/E-4.

2.  The applicant essentially states that his discharge under other than honorable conditions [which was actually a general discharge under honorable conditions] was found to be improper and upgraded to an honorable discharge by the Army Discharge Review Board (ADRB), and that he was reduced in rank and pay grade as a result of his discharge.

3.  The applicant provides a portion of the ADRB proceedings which upgraded his general discharge to an honorable discharge and a letter, dated 15 March 2005, from the Army Review Boards Agency Support Division in St. Louis, Missouri, 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 he enlisted in the Regular Army on 30 September 1988 in the rank and pay grade of private/E-2.  He completed basic and advanced individual training and was awarded military occupational specialty 91A (Medical Specialist).  He departed for a tour in Germany on 20 March 1989 and was assigned to Headquarters and Headquarters Troop, 2d Squadron, 11th Armored Cavalry Regiment.  He was promoted to private first class (PFC)/E-3 on 30 November 1989.  

3.  A DA Form 4187 (Personnel Action), dated 23 October 1990, denied the applicant's promotion to SPC/E-4 for unknown reasons.

4.  The applicant began service in Southwest Asia on 20 June 1991.

5.  On 26 July 1991, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful command from his superior commissioned officer.  His punishment consisted of a reduction in rank and pay grade from PFC/E-3 to private/E-1, forfeiture of $376.00 pay per month for 2 months, extra duty for 45 days, and restriction for 45 days.  The applicant appealed this NJP; however, on 29 July 1991, his regimental judge advocate opined that the proceedings were conducted in accordance with law and regulation, and that the punishment imposed was neither unjust nor disproportionate to the offense the applicant committed.  On 4 August 1991, the applicant's appeal was denied.

6.  The applicant's service in Southwest Asia ended on 4 September 1991.

7.  On 28 September 1991, the applicant was discharged under honorable conditions under the provisions of chapter 14 (Separation for Misconduct), Army Regulation 635-200 (Enlisted Personnel).  The ADRB initially changed the narrative reason for his discharge from "Misconduct – Commission of a Serious Offense" to "Misconduct."

8.  In subsequent proceedings, the ADRB upgraded the applicant's general discharge to an honorable discharge and changed the reason and authority for his discharge to "Secretarial Authority" and "Army Regulation 635-200," respectively.


9.  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 his military records should be corrected to show that his rank and pay grade at the time of his discharge was SPC/E-4.

2.  While the applicant contends that his military records should be corrected to show that his rank and pay grade at the time of his discharge was SPC/E-4, the evidence of record does not show that he was ever promoted to SPC/E-4.  The applicant also failed to provide any evidence which shows that he was ever promoted to SPC/E-4.

3.  The applicant's contention that he was reduced in rank and pay grade as a result of his discharge was considered, but not found to have any merit.  The applicant's reduction from PFC/E-3 to private/E-1 was the result of his accepting NJP under Article 15 of the UCMJ, and was a distinct and separate action from his discharge proceedings.

4.  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

____X____  __X______  ___X_____  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)                                         AR20080014286



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ABCMR Record of Proceedings (cont)                                         AR20080014286



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