IN THE CASE OF:	  

		BOARD DATE:	       13 November 2008

		DOCKET NUMBER:  AR20080015624 


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 correction of his records to show he was discharged as a private first class (PFC)/E-3 instead of a private (PVT)/E-1.

2.  The applicant states that he was supposed to receive his PFC rank back before he was discharged.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 26 October 1976, and a page 2 of his four-page DA Form 2-1 (Personnel Qualification Record).

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 records show he enlisted in the Regular Army for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 72E (Telecommunications Center Specialist).  He was subsequently assigned to Headquarters and Headquarters Company, 197th Infantry Brigade, Fort Benning, Georgia, and was promoted to PV2/E-2 on 30 August 1974.

3.  On 19 December 1974, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for twice failing to go at the time prescribed to his appointed place of duty on or about 17 December 1974.  His punishment consisted of reduction to private (PVT)/E-1 and forfeiture of $50.00 pay.

4.  The applicant's records show he was promoted back to PV2/E-2 on 1 March 1975 and PFC/E-3 on 18 August 1975.

5.  On 8 December 1975, the applicant pled guilty at a Special Court-Martial for one specification of being absent without leave (AWOL) during the period on or about 8 October 1975 through on or about 31 October 1975.  The Court sentenced him to reduction to PVT/E-1 and confinement at hard labor for 35 days.  The sentence was adjudged on 8 December 1975 and was approved on 18 December 1975.

6.  On 4 June 1976, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL during the period on or about 10 May 1976 through on or about 13 May 1976.  His punishment consisted of 45 days of restriction.

7.  On 16 September 1976, the applicant underwent a Physical Evaluation Board (PEB) that recommended his separation with entitlement to severance pay.  Accordingly, the applicant was honorably discharged on 28 October 1976.  The DD Form 214 he was issued shows he completed 2 year, 4 months, and 3 days of creditable military service.  Item 6a (Grade, Rate or Rank) of this form shows the entry "PV1" and Item 6b (Pay Grade) of this form shows the entry "E-1."

8.  Item 18 (Appointments and Reductions) of the applicant’s DA Form 2-1 (Personnel Qualification Record), dated 18 October 1974 (prepared), shows the applicant’s promotions and reductions.  His last entry was that of a PVT/E-1, effective 8 December 1975 (the date his Special Court-Martial sentence was adjudged).

9.  The applicant's records do not contain orders that show he was promoted to PFC/E-3 after his reduction to PVT/E-1 on 8 December 1975.
10.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The active duty grade or rank and pay grade at the time of separation is entered in Item 6a and the effective date of promotion to the current pay grade (from the most recent promotion or reduction order) is entered in Item 6b.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant attained the rank/grade of PFC/E-3 on 18 August 1975.  However, he was subsequently reduced to    PVT/E-1 on 18 December 1975 by a Special Court-Martial that found him guilty of being AWOL and sentenced him to reduction.  

2.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows he was recommended for promotion and/or promoted to PFC/E-3 subsequent to his reduction.  

3.  In the absence of evidence to the contrary, his rank and grade shown on his DD Form 214 are correct.  Therefore, there is insufficient evidence to grant the applicant the requested relief 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.



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      _______ _   _______   ___
               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)                                         AR20080015624



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ABCMR Record of Proceedings (cont)                                         AR20080015624



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