IN THE CASE OF:	  

		BOARD DATE:	   	   28 May 2009

		DOCKET NUMBER:  AR20090002197 


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, correction of the rank and pay grade shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect, he received a copy of his records from the National Personnel Records Center and there is no documentation reducing him in grade from private first class (PFC)/E-3 to private (PV2)/E-2.  He also states he was between an Article 15 and a summary court-martial for charges of working off post without permission, he had not been paid by the U.S. Army for 13 months, and the court-martial was ordered halted based on an inquiry from Senator A____ C____’s office.  The applicant adds he lived on $35.00 a month for over a year while he lost everything he held dear, including his wife, daughter, and hope for any happiness.  The applicant concludes by stating that he served honorably, those above him did not do their jobs in protecting him from any wrongdoing, and there are no documents to support the reduction in grade that is recorded on his discharge document.

3.  The applicant provides no additional documentary evidence.

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 (RA) for a period of 3 years on 19 September 1967.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 36K (Wireman).

3.  The applicant's military personnel records contain a DD Form 214 that shows he enlisted in the RA on 19 September 1967 and was honorably discharged on 10 September 1968 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with the separation program number (SPN) "313" for the purpose of immediate reenlistment.  At the time he had completed 11 months and 22 days of net active service this period and 5 months and 2 days of foreign service.  Item 5a (Grade, Rate, or Rank) contains the entry "PFC (P)," item 5b (Pay Grade) contains the entry "E-3," and item 6 (Date of Rank) contains the entry "24 Apr 68."

4.  On 11 September 1968, the applicant reenlisted in the RA for a period of 6 years.

5.  The applicant's military personnel records contain a DA Form 20 (Enlisted Qualification Record).  Item 33 (Appointments and Reductions) shows the applicant was appointed in the grade of private (PV1)/E-1 with a date of rank (DOR) of 20 September 1967, advanced to the grade of PV2/E-2 with a DOR of 20 January 1968, advanced to the grade of PFC/E-3 with a DOR of 24 April 1968, appointed to the grade of specialist four (SP4)/E-4 with a DOR of 6 September 1968, reduced to the grade of PFC/E-3 with a DOR of 21 August 1969, reinstated in the grade of SP4/E-4 with a DOR of 6 September 1968, and reduced to the grade of PV2/E-2 with a DOR of 28 September 1970.  This item also shows the authority for the applicant’s reduction to the grade of PV2/E-2 with a DOR of 28 September 1970 as Headquarters, 1st Enlisted Student Battalion, School Brigade, Unit Orders Number 27 (1970).



6.  The applicant's military personnel records contain a copy of Headquarters, 3rd Infantry Division, Germany, Special Orders Number 257, dated 24 September 1968, that show, in pertinent part, the applicant was appointed to the temporary grade of SP4/E-4 effective and with a DOR of 6 September 1968.
7.  The applicant's military personnel records contain a copy of Headquarters, 3rd Infantry Division, Germany, Special Orders Number 255, dated 26 September 1969, that show, in pertinent part, the applicant was reduced to the grade of PFC/E-3 effective 21 August 1969 with a DOR of 6 September 1968 based on misconduct.

8.  The applicant's military personnel records contain a copy of Headquarters, U.S. Army Signal Center and School, Fort Monmouth, New Jersey, Special Orders Number 101, dated 20 May 1970.  These orders show, in pertinent part, that Headquarters, 3rd Infantry Division, Germany, Special Orders Number 255, dated 26 September 1969, that authorized the applicant’s reduction in grade to PFC/E-3 were set aside and the grade of SP4/E-4 was reinstated with a DOR of 6 September 1968 effective 18 May 1970.

9.  The applicant's military personnel records contain a copy of Headquarters, U.S. Army Signal Center and School, Fort Monmouth, New Jersey, Special Orders Number 105, dated 26 May 1970, that revoked in its entirety Headquarters, 3rd Infantry Division, Germany, Special Orders Number 101, dated 20 May 1970.  Paragraph 18 of these orders also shows, in pertinent part, that Headquarters, 3rd Infantry Division, Germany, Special Orders Number 255, dated 26 September 1969, that authorized the applicant’s reduction in grade to PFC/E-3 were set aside and the grade of SP4/E-4 was reinstated with a DOR of 24 September 1968 effective 18 May 1970.

10.  The applicant’s military personnel records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 28 September 1970.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for signing an official record with intent to deceive, to wit:  DD Form 669 (Individual Sick Slip), that was then known to be false, on or about 15 September 1970 at Fort Monmouth, New Jersey; for failing to go at the time prescribed to his appointed place of duty on or about 0630 hours, 22 September 1970, at Fort Monmouth, New Jersey; and for failing to go at the time prescribed to his appointed place of duty on or about 0530 hours, 23 September 1970, at Fort Monmouth, New Jersey.  His punishment consisted of restriction to the company area for 45 days and reduction to the grade of PV2/E-2.



11.  The applicant's military personnel records contain a copy of Headquarters, 1st Enlisted Student Battalion, School Brigade, U.S. Army Signal Center and School, Fort Monmouth, New Jersey, Unit Orders Number 27, dated 6 October 1970, that show the applicant was reduced in grade from SP4/E-4 to PV2/E-2 effective and with a DOR of 28 September 1970 based on misconduct.  The authority for the reduction in grade was Article 15, UCMJ; Army Regulation 27-10 (Military Justice); and Commanding Officer, 1st Battalion, School Brigade, U.S. Army Signal Center and School, Fort Monmouth, New Jersey.

12.  The applicant's military personnel records are absent any promotion orders or instrument documenting his promotion to the grade of PFC/E-3 subsequent to 28 September 1970.

13.  The applicant's military personnel records contain a DD Form 214 that shows he reenlisted in the RA on 11 September 1968 and was discharged under honorable conditions on 10 December 1970 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) with the SPN "264" for reasons of unsuitability.  At the time he had completed 2 years and 3 months of net active service this period; 11 months and 22 days of other service; 3 years, 2 months, and 22 days of total service; and 1 year of foreign service.  Item 5a contains the entry "PVT (E-2)," item 5b contains the entry "E-2," and item 6 contains the entry "28 Sep 70."

14.  Army Regulation 635-5 (Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  This regulation states that the purpose of a separation document is to provide the individual with documentary evidence of his or her military service at the time of separation.  Therefore, it is important the information entered thereon is complete and accurate as of that date.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214 including the Enlisted Qualification Record, Officer Qualification Record, and orders.  Paragraph 23 (Item 5a - Grade, Rate or Rank; Item 5b - Pay Grade, and Item 6 - Date of Rank) states, "self-explanatory."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the rank and pay grade shown on his DD Form 214 with an effective date of 10 December 1970 should be corrected because there is no documentation in his records reducing him from PFC/E-3 to PV2/E-2 or that supports his reduction in grade to PV2/E-2.

2.  The evidence of record thoroughly documents the applicant’s initial temporary appointment to the grade of SP4/E-4 effective and with a DOR of 6 September 1968, his reduction to the grade of PFC/E-3 effective 21 August 1969, and reinstatement to the grade of SP4/E-4 with a DOR of 24 September 1968 effective 18 May 1970.

3.  The evidence of record shows that nonjudicial punishment was imposed by the battalion commander against the applicant on 28 September 1970 that consisted, in pertinent part, of reduction to the grade of PV2/E-2 which was within the battalion commander’s authority and purview.  The evidence of record also shows that unit orders announced the applicant’s reduction in grade from SP4/
E-4 to PV2/E-2 effective and with a DOR of 28 September 1970.  Thus, the evidence of record refutes the applicant’s contention that there is no documentation in his records that supports his reduction in grade to PV2/E-2.

4.  There are no orders or other evidence that shows the applicant was promoted to the grade of PFC/E-3 subsequent to his reduction in grade to PV2/E-2 on 28 September 1970 and prior to the date of his discharge on 10 December 1970.  Thus, the evidence of record confirms that the applicant’s grade at the time of his discharge on 10 December 1970 was PV2/E-2.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his DD Form 214.

5.  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)                                         AR20090002197



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ABCMR Record of Proceedings (cont)                                         AR20090002197



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