IN THE CASE OF:	  

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20080018285 


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 reduction to the rank of private (PV1)/pay grade E-1, be set aside; that he be restored to the rank of specialist (SPC)/pay grade E-4; and correction to Items 4a (Grade, Rate or Rank), 4b (Pay Grade), and 12h (Effective Date of Pay Grade) of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, in effect, that he would like his headstone to reflect his highest rank earned.  He also states that he fought in Iraq as a private first class (PFC) and was then promoted to SPC.  When he came home he had some problems and started drinking, and using cocaine and marijuana.  He never knew that he could get help from the Department of Veterans Affairs until 2006.  He is now doing well and sees a doctor once a month.  He further states, in effect, that he is currently rated at 50 percent disabled for post traumatic stress disorder.

3.  In support of his application, the applicant provides copies of a reverse side of a DA Form 638 (Recommendation for Award), his certificate for award of the Army Commendation Medal with "V" (Valor) Device, a newspaper article referencing him being decorated for valor in Iraq, his DD Form 214 and Honorable Discharge Certificate, his National Tractor Trailer School Official Transcript, and his Commercial Drivers Course completion certificate.

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 military records show that he enlisted in the Army Delayed Entry Program (DEP) on 7 September 2001.  He was discharged from the DEP on 3 October 2001 and enlisted in the Regular Army, in pay grade E-1, on
4 October 2001, for 3 years.  He served in Operation Enduring Freedom/Operation Iraqi Freedom from 5 January 2003 to 15 July 2003.  He was promoted to SPC on 1 August 2003.

3.  A DA Form 4856 (Developmental Counseling Form), dated 5 September 2003, shows the applicant was counseled by his unit's squad leader concerning his recent failure of the Army Urinalysis Testing in which he came up positive for the use of two illicit drug substances.  The applicant was also advised that according to the policies under the Uniform Code of Military Justice (UCMJ), illicit drug use would not be tolerated.  On the same day, the applicant acknowledged receipt of counseling.

4.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 9 September 2003, shows a flagging action was initiated against the applicant for adverse action. 

5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 15 September 2003, shows the applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or affect was unremarkable, his thinking process was clear, and his thought content was normal.  The evaluating psychologist considered him to have the mental capacity to understand and participate in separation proceedings and cleared him for any administrative action deemed appropriate by the command.

6.  On 25 September 2003, the applicant accepted punishment under Article 15, UCMJ, for wrongfully using some amount of marijuana between 22 July and

21 August 2003 and wrongfully using cocaine between 18 August and 21 August 2003.  His punishment included reduction to pay grade E-1, forfeiture of $575.00 pay per month for two months, and restriction and extra duty for 45 days.  He elected to appeal the punishment; however, his appeal was denied on 29 September 2003.

7.  As a result of the Article 15 punishment, he was duly reduced to PV1, effective 25 September 2003.

8.  On 24 November 2003, the applicant's commander recommended he be barred from reenlistment based on a positive urinalysis on 25 August 2003.  The bar to reenlistment was approved on 11 December 2003.

9.  On 17 December 2003, the applicant's battery commander notified him of his intentions to initiate action to eliminate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 14, paragraph 14-12(c)(2), for abuse of illegal drugs.  The commander stated that he was recommending the applicant receive a general discharge.

10.  On 17 December 2003, the applicant acknowledged the contemplated action to separate him for abuse of illegal drugs under Army Regulation 635-200, chapter 14, paragraph 14-12(c)(2), and its effects and the rights available to him. He elected not to submit a statement in his own behalf.  He also elected not to have his case heard before a board of officers and waived personal appearance before an administrative separation board.

11.  On the same day, the applicant's battery commander recommended the applicant's discharge from the service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12(c)(2) prior to the expiration of his term of service.  The battery commander stated that further attempts of rehabilitation were not in the best interest of the command or the U.S. Army.

12.  On the same day, the applicant's battalion commander recommended the applicant's discharge from the service under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12(c)(2), for abuse of illegal drugs, with a general discharge.  His discharge was subsequently approved on the same day by the division artillery commander and it was directed that he receive a General Discharge Certificate.

13.  The applicant was discharged on 23 December 2003, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 14, for Misconduct, with a general discharge.  He was credited with 2 years, 2 months, and 20 days total active service.  The DD Form 214 he was issued at the time confirms he held the rank of PV1/E-1.  

14.  On 14 November 2005, the Army Discharge Review Board (ADRB) determined that the applicant's discharge was improper based on someone other than the General Court-Martial Convening Authority approving his discharge.  Accordingly, the ADRB voted to grant full relief in the form of an upgrade of the applicant's characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  However, that action did not entail a restoration of his rank and pay grade of SPC/E-4.  

15.  The applicant was reissued a DD Form 214 changing his character of service to Honorable and the narrative reason for separation to Secretarial Authority.   Item 4a of his DD Form 214 remained “PV1” and Item 4b remained “E-1.”

16.  Army Regulation 635-5 (Separation Documents), dated 15 September 2000, provides instructions for the preparation of the DD Form 214.  It states, in pertinent part, that Items 4a, 4b, and 12h will list the rank, pay grade, and effective date of pay grade for the current pay grade at the time of separation.  

DISCUSSION AND CONCLUSIONS:

1.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

2.  The applicant's contentions have been noted; however, after considering the applicant's statement and the supporting documentation, he has not provided clear and convincing evidence that the punishment and reduction to the rank/grade of PV1/E-1 was unjust, in whole, or in part, to support his request.  The applicant was serving in the rank of SPC/E-4 when he was administered 
punishment under Article 15 of the UCMJ for wrongfully using cocaine and marijuana.  A portion of the punishment imposed was a reduction to the 
rank/grade of PV1/E-1.  He was reduced to PV1/E-1 effective 25 September 2003, as a result of the Article 15.  He appealed the punishment and did not submit any additional matters for consideration.  His appeal was denied.

3.  The applicant also has provided no evidence showing that the punishment imposed was inequitable or unjust for the offenses committed or that he was unjustly reduced to PV1/E-1 on 25 September 2003.  Therefore, he is not entitled to correction of his reissued DD Form 214 to show any rank/grade other than PV1/E-1.  He is also not entitled to correction of his effective date of rank as shown on his reissued DD Form 214.

4.  The ADRB upgraded the applicant's discharge to fully honorable and changed the authority and reason to Secretarial Authority because his separation had been approved by an improper separation authority.  The ADRB directive authorizing this action did not entail a restoration of the applicant's rank and pay grade.

5.  In view of the foregoing, there is no basis for granting the applicant’s requested relief.

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)                                         AR20080018285



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ABCMR Record of Proceedings (cont)                                         AR20080018285



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