IN THE CASE OF:
BOARD DATE: 22 JANUARY 2009
DOCKET NUMBER: AR20080017674
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 reconsideration of her previous request to have her records corrected to show that her pay grade is E-4.
2. The applicant states, in effect, that she received nonjudicial punishment (NJP) for minor misconduct and her rank was not reduced. However, at the time she was demobilizing, a copy of her NJP was placed into her out-processing packet and the personnel clerk reduced her to the pay grade of E-3 on her DD Form 214 (Certificate of Release or Discharge from Active Duty). She goes on to state that she was not reduced to the pay grade of E-3 and her records should be corrected to reflect the pay grade of E-4.
3. The applicant provides a one-page memorandum explaining her application, a copy of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ), a copy of her DD Form 214, a copy of her leave and earnings statement for February 2005, and a copy of orders releasing her from active duty.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests that the Board waive the 3-year statute in the applicant's case.
2. Counsel states that the applicant has made multiple attempts through her unit to correct her records to no avail and that she has finally resorted to requesting the assistance of the Trial Defense Service. Accordingly, the statute should not be applied in her case.
3. Counsel provides a memorandum requesting that the statute be waived by the Board.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060013764, on 29 March 2007.
2. The applicant enlisted in the United States Army Reserve (USAR) in the pay grade of E-3 on 26 March 2001 for a period of 8 years and training as an automated logistical specialist. She completed her training and was transferred to her USAR unit in Louisiana.
3. On 7 December 2003, she was ordered to active duty in support of Operation Iraqi Freedom in the pay grade of E-4. She deployed to Iraq on 17 February 2004.
4. On 1 September 2004, NJP was imposed against the applicant for disobeying a lawful order from a superior noncommissioned officer. Her punishment consisted of a reduction to the pay grade of E-3 and a forfeiture of $393.00 (suspended until 2 March 2004 if not sooner vacated). It appears the suspension should have read 2 March 2005.
5. The applicant departed Iraq on 4 February 2005 and was transferred to Fort Sill, Oklahoma where she was honorably released from active duty (REFRAD) on 27 February 2005, in the pay grade of E-3. Her date of rank (DOR) for her pay grade on her DD Form 214 reflects an effective date for her pay grade as 1 September 2004. She was returned to her Louisiana USAR unit.
6. Information obtained from the integrated Personnel Management Records System shows the applicant's rank as Specialist, E-4, with a date of rank and effective date of 11 April 2006.
7. On 2 October 2006, she was awarded the Combat Action Badge (CAB) for actively engaging or being engaged by the enemy during the period of 3 March to 5 December 2004. The standard name line in the orders shows her rank as Private First Class, E-3.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that she was erroneously reduced at the time of her outprocessing because a copy of the record of NJP (DA Form 2627) was included in her outprocessing files and that she was never actually reduced in grade by the NJP. However, a review of the NJP shows that her punishment consisted of a reduction to the pay grade of E-3 and a suspended forfeiture of pay.
2. Inasmuch as the applicant has provided a partial copy of her DA Form 2627 which reflects that she was reduced to the pay grade of E-3 and since she has not provided any documentation/evidence to dispute that her reduction to the pay grade of E-3 was in error, and that she was subsequently advanced to pay grade E-4 in April 2006, there appears to be no basis to grant her request to be reinstated to the pay grade of E-4 at this time.
3. 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 to amend the decision of the ABCMR set forth in Docket Number AR20060013764, dated 29 March 2007.
_______ _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) AR20080017674
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