IN THE CASE OF:	  

		BOARD DATE:	  14 May 2009

		DOCKET NUMBER:  AR20090001660 


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 Item 4a (Grade, Rate, or Rank) 
and Item 4b (Pay Grade) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show the rank and pay grade of 
specialist four/(SP4/E-4) instead of private (PV1/E-1).

2.  The applicant states, in effect, that although he held the rank SP4, an error was made on his DD Form 214 which shows he held the rank of PV1.  He states that initially he was a military police officer, but he was court-martialed, and assigned to Fort Riley, Kansas, for retraining.  He was then assigned to Fort Dix, New Jersey for completion of military occupational specialty (MOS) 64C (Motor Transport Operator) training.  Following completion of this MOS training he was assigned to a transportation unit at Fort Campbell, Kentucky.  He claims he served his final 18 months as a PV1 without getting into any trouble, and he was told by his first sergeant (1SG) that his rank would show up in his pay (twice); however, it never did.  He also states that his sergeant major (SGM) told him he would get his rank straight; however, it did not happen.  He was denied reenlistment based on his rank and was discharged.  He indicates that approximately 90 days later he was called and told that he could come back into the Army, his rank had been fixed and that would receive back pay, but it never happened.  He finally states that he was willing to fight and die for his country and only asks for what is rightfully his.

3.  The applicant provides a copy of his DD Form 214 in support of his request.


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 personnel records show he enlisted in the Regular Army and entered active duty on 21 March 1979.  His DA Form 2-1 (Personnel Qualification Record) shows he completed basic combat training and that while attending advanced individual training in MOS 95B (Military Policeman), he departed absent without leave (AWOL) from his unit on 18 November 1979.  He remained away for 15 days until returning to military control on 2 December 1979.  

3.  Item 18 (Appointments and Reductions) of the applicant’s DA Form 2-1 shows he was promoted to the rank and pay grade of private first class/(PFC/E-3) on 
1 May 1980, and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to PV1 on 2 October 1980.

4.  Item 21 (Time Lost) of the applicant's DA Form 2-1 shows he accrued a total of 33 days of time lost due to two separate periods of AWOL (18 November through 2 December 1979 and 2 through 13 October 1980.  He also had one period of imprisonment from 27 October-1 November 1980. 

5.  A DA Form 2-2 (Insert Sheet to DA Form 2-1) shows that on 2 October 1980 a summary court-martial (SCM) convicted the applicant of failing to obey a lawful order on or about 6 September 1980 and of being disrespectful to his superior noncommissioned officer on or about 10 September 1980.  The resultant sentence was a reduction to PV1, a forfeiture of $167.00 for 1 month, and confinement at hard labor for 15 days.


6.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offense(s) indicated:  on 20 December 1979, for being AWOL from 18 November – 3 December 1979; 6 November 1980, for being AWOL from 26 October – 2 November 1980; 25 September 1981, for disobeying a lawful order given by his superior commissioned officer; and 7 December 1981, for failing to go to his appointed place of duty at the prescribed time.

7.  On 22 April 1982, the applicant was honorably released from active duty (REFRAD).  The DD Form 214 he was issued at that time lists his rank and pay grade as PV1/E-1 in Items 4a and 4b, and the applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated) on the date of his REFRAD.  

8.  Army Regulation 635-5 prescribes the separation documents that are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-4h(4), states in effect, that the active duty rank and pay grade at the time of separation will be entered in Item 4a and Item 4b of the DD Form 214. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Items 4a and 4b of his DD Form 214 should be corrected to show he held the rank and pay grade of SPC/E-4 was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  The available evidence confirms the highest rank and pay grade the applicant held while serving on active duty was PFC/E-3.  It further shows that he was reduced to PV1/E-1 as a result of a court-martial conviction on 2 October 1980, and this was the rank and pay grade he held on the date of his REFRAD, as evidenced by his DA Form 2-1, DA Form 2-2, and DD Form 214.  

3.  The applicant's record reveals an extensive disciplinary history that includes conviction by a SCM and receipt of NJP on five separate occasions.  As a result, absent any evidence that he was recommended for promotion, or promoted by proper authority or that he was unjustly denied promotion while serving on active duty, his record is not sufficiently meritorious to support the relief requested. 



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.

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)                                         AR20090001660



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ABCMR Record of Proceedings (cont)                                         AR20090001660



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