IN THE CASE OF:	  

		BOARD DATE:	       29 January 2009

		DOCKET NUMBER:  AR20080015439 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank and pay grade as specialist (SPC), E4 in item 4a (Grade, Rate, or Rank) and 4b (Pay Grade).

2.  The applicant states that blocks 4a and 4b are incorrect on his DD Form 214.  He contends that his rank and pay grade were SPC, E-4 at the time he was discharged.  He states that the last Leave and Earnings Statement (LES) he received on 30 March 1998 reflected he was a SPC, E-4.  He noticed the error when he received his DD Form 214. 

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 3 March 1992.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 82C (Field Artillery Surveyor).  He completed a tour in Germany.  

3.  He was promoted to SPC on 3 May 1994 and sergeant on 8 September 1995.

4.  On 10 December 1997, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for violating a lawful general regulation by wrongfully transporting and possessing a firearm in his privately owned vehicle (POV).  His punishment consisted of a reduction to SPC, E-4, a forfeiture of $671.00 pay for 2 months, extra duty for 45 days, and restriction for 45 days.

5.  On an unknown date, the separation authority approved the discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct with issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The applicant was reduced to the lowest enlisted grade based on Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 6-11 and Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 6-15.  

6.  Headquarters, United States Infantry Center, Fort Benning, Georgia Orders 104-2245, dated 14 April 1999, show the applicant was reassigned to the 
U.S. Army transition point to be discharged on 21 April 1999.  His rank is shown as "PV1" on the standard name line of these orders.

7.  The applicant was discharged on 21 April 1999 under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct with issuance of an under other than honorable conditions discharge.  He completed a total of 7 years, 1 month and 19 days of active military service.

8.  Item 4a (Grade, Rate or Rank) and item 4b (Pay Grade) on the applicant’s DD Form 214 shows his rank and pay grade as “PV1” and “E1.”  

9.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  In pertinent part, it directed that the grade in which enlisted personnel were serving at the time of 


separation would be entered in item 4a and the pay grade will be entered in item 4b.

10.  Army Regulation 600-200, paragraph 6-11 and Army Regulation 600-8-19, paragraph 6-15, in effect at the time, stated that when the separation authority determines that a Soldier was to be discharged from the Service under other than honorable conditions, the Soldier would be reduced to the lowest enlisted grade.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank and pay grade were SPC, E-4 at the time he was discharged.

2.  The applicant was promoted to sergeant on 8 September 1995.  He was reduced from sergeant to SPC on 10 December 1997 as a result of nonjudicial punishment under Article 15, UCMJ.

3.  The applicant was separated on 21 April 1999 under the provisions of Army Regulation 635-200, paragraph 14-12c.  The separation authority determined that the applicant would be issued an under other than honorable conditions discharge.  As a result, he was reduced from SPC to the lowest enlisted grade of private, E-1.  

4.  Based on Army Regulation 635-5, the DD Form 214 is meant to reflect the applicant's status as of his last day of active duty on 21 April 1999.  As of that date, he was a private, E-1.  Therefore, his DD Form 214 accurately reflects his rank and pay grade as private, E-1.

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)                                         AR20080015439





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ABCMR Record of Proceedings (cont)                                         AR20080015439



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