IN THE CASE OF:	

		BOARD DATE:	  10 February 2009

		DOCKET NUMBER:  AR20080017189 


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 record and separation document (DD Form 214) be corrected to show his rank as specialist four (SP4).  

2.  The applicant states, in effect, that he would like his record corrected to show his rank as SP4 based on the successful appeal of his general court-martial (GCM) conviction.  

3.  The applicant provides his DD Forms 214, dated 2 November 1973 and 
7 November 1977, 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 he was initially inducted into the Army of the United States (AUS) and entered active duty on 11 November 1971.  He continually served for a period of 1 year, 11 months, and 22 days until being honorably released from active duty (REFRAD) and transferred to the United States Army Reserve to complete his military service obligation on 2 November 1973.  The DD Form 214 he was issued at the time shows he held the rank of SP4 at the time of his REFRAD.  

3.  On 9 December 1973, the applicant enlisted in the Texas Army National Guard (TXARNG) and he continued to serve in that status for 5 months and 
23 days until being discharged, on 1 June 1974, by reason of continued and willful absence from military duty.  

4.  On 29 June 1974, the applicant enlisted in the Regular Army (RA) for a period of 3 years, in the rank of specialist four (SP4), and entered active duty in that status.  He was trained in and awarded military occupational specialty (MOS) 36K (Tactical Wire Operator).  

5.  The applicant's record shows that he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 26 August 1974, for failure to be at his appointed place of duty at the prescribed time and on 28 September 1975, for being absent without leave (AWOL) from on or about 2 September until on or about 4 September 1975.

6.  On 27 August 1976, a GCM found the applicant guilty of violating Article 134 of the Uniform Code of Military Justice (UCMJ).  The resultant sentence was a dishonorable discharge (DD).  

7.  On 7 December 1976, the applicant accepted NJP for disposing of by releasing the contents of a fire distinguisher valued at $17.50.  His punishment for this offense included a reduction to private first class (PFC).  

8.  On 21 September 1977, the United States Army Court of Military Review set aside the applicant's GCM conviction and sentence, and in Headquarters, 
Fort Huachuca GCM Order Number 5, dated 4 November 1977, the convening authority dismissed all charges against the applicant and authorized all rights, privileges, and property of which the applicant had been deprived of by virtue of the findings of guilty and the sentence so set aside be restored. 


9.  On 7 November 1977, the applicant was honorably released from active duty (REFRAD) and transferred to the USAR Control Group.  Item 5a and Item 5b of the DD Form 214 he was issued at the time confirms he held the rank of PFC on the date of his separation with a date of rank of 2 June 1976.  The DD Form 214 also shows he completed a total of 3 years, 3 months, and 27 days of active military service and that he had accrued 12 days of lost time due to being AWOL. The applicant authenticated this document with his signature in Item 32 (Signature of Person Being Transferred or Discharged) on the date of his separation. 

10.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item DD Form 214 preparation instructions.  The instructions for items 5a and 5b state, in effect, to enter the rank and pay grade held by the member on the date of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show his rank as SP4 based on his successful appeal of his GCM conviction was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The evidence of record confirms the applicant won his GCM appeal and that the approving authority dismissed all charges against him and ordered that all rights, privileges, and property he had been deprived of based on his GCM conviction be restored.  However, the evidence of record also confirms the applicant was reduced to PFC as a result of NJP action taken in December 1976, which was subsequent to and separate from his GCM conviction.  

3.  Although the applicant's record is not complete regarding his record of promotions and reductions and there appears to be an administrative error in the date of rank listed in Item 7 (date of rank) of his DD Form 214, which shows his PFC date of rank as 2 June 1976, it is clear that his last reduction to PFC was the result of his misconduct in December 1976, subsequent to his GCM conviction.  As result, the successful appeal of his GCM conviction does not provide a sufficient evidentiary basis to restore his rank to SP4 given his reduction was based on a valid subsequent NJP action taken that was not related to the GCM conviction or its successful appeal.  


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.

5.  Evidence shows that the applicant's records contain an administrative error related to the date of rank listed in Item 7 of his DD Form 214 which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned by correcting his DD Form 214 dated 7 November 1977 by deleting the current entry contained in Item 7 and replacing it with the entry "76 12 07."




      _______ _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)                                         AR20080017189



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017189



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1