IN THE CASE OF:	  

		BOARD DATE:	  24 March 2009

		DOCKET NUMBER:  AR20080016922 


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, restoration of his rank to private first class (PFC)/E-3, subsequent promotions, and all back pay and allowances due as a result.

2.  The applicant states, in effect, that he was notified of his rank of PFC on 16 February 1991, and makes an inarticulate argument regarding why his discharge was not valid and why he should receive subsequent promotions through the grade of O-11 plus.

3.  The applicant provides an Army Achievement Medal (AAM) Certificate, dated 16 February 1991, and a Vanguard Certificate of Achievement, dated 9 November 1987, in support of his 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 record shows that enlisted in the Regular Army and entered active duty on 12 July 1989, and was trained in and awarded military occupational specialty 94B (Cook).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was promoted to PFC on 1 November 1990 and that this is the highest grade he attained while serving on active duty.  Item 21 (Time Lost) shows he departed absent without leave (AWOL) from his organization on 3 September 1991 and that he remained away for 315 days until returning to military control on 14 September 1992.

4.  The applicant's record contains Department of the Army, Headquarters, Fort Dix, Fort Dix, New Jersey, Orders 321-86, dated 16 November 1992, which reduced the applicant to private (PV1)/E-1 on 30 October 1992.  The authority for the reduction was paragraph 6-11, Army Regulation 600-200 (Enlisted Personnel Management System).

5.  The applicant's record is void of a separation packet containing the facts and circumstances surrounding his discharge processing.  The record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service on 16 December 1992 and that he received an under other than honorable conditions (UOTHC) discharge.  It further shows that at the time of his discharge he had completed 2 years, 6 months, and 24 days of creditable active military service and had accrued 315 days of time lost due to AWOL.  The DD Form 214 further confirms that he held the rank of PV1/E-1 on the date of his discharge.

6.  On 30 April 1998, the Army Discharge Review Board, after carefully examining the applicant's entire record of service and the issues he presented, determined his discharge was proper and equitable and denied his request for an upgrade of or change to the reason for his discharge.

7.  The applicant provides a certificate, dated 16 February 1991, which shows he was awarded the AAM for meritorious service during the period 19 September 
1990 through 16 January 1991 while serving in Saudi Arabia.  The certificate lists his rank as PFC and confirms the award was authorized by the 27th Engineer Battalion, Fort Bragg, North Carolina, Permanent Orders 66-18.

8.  Army Regulation 600-200, in effect at the time, prescribed the policies and procedures for the career management of enlisted personnel, which included promotions and reductions.  Chapter 6 provided guidance on reductions of enlisted personnel.

9.  Paragraph 6-11 of the same regulation provided the authority for the reduction of a member approved for discharge from the service UOTHC.  It stated, in pertinent part, that when the separation authority determined that a Soldier was to be discharged UOTHC he/she would be reduced to the lowest enlisted grade and that board action was not required for this reduction.  It further confirmed that the commander having separation authority would, when directing a UOTHC discharge or when directed by higher authority, direct the Soldier be reduced to PV1.  This provision of the regulation remains in effect under current regulatory policy.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate for a Soldier who is discharged in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his rank should be restored to PFC and he should receive subsequent promotions and back pay was carefully considered.  However, by regulation, when directing a member be discharged UOTHC, the commander acting as the separation authority is required to direct the member be reduced to the lowest enlisted grade.

2.  The available evidence includes orders confirming the applicant was reduced to PV1 in conjunction with his approved UOTHC discharge in accordance with the applicable regulation, as evidenced by the reduction orders on file.  Although the record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s final discharge processing, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The applicant’s separation document confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ).  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

4.  In the absence of information or evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout his discharge processing.

5.  Given the applicant was reduced to PV1 in conjunction with his approved UOTHC discharge as is required by regulation, absent any evidence of error or injustice related to his discharge processing, there is an insufficient evidentiary basis to restore his rank or to grant the additional relief he is requesting.

6.  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.

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.



      _________x________________
                 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)                                         AR20080016922



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ABCMR Record of Proceedings (cont)                                         AR20080016922



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