IN THE CASE OF:	  

		BOARD DATE:	      17 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090004872 


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 his military records to show his rank/grade was restored to sergeant (SGT)/E-5 at the time of his discharge.

2.  The applicant states that if he had not been wrongfully incarcerated, he would have been discharged as an SGT/E-5.  He lost everything and on the advice of counsel he filed a claim for compensation.  He was then charged with fraud and given the option of an administrative discharge.  He is now married and a father of three children.  He was blessed with an Army Discharge Review Board (ADRB) that recognized his great character.  His discharge was upgraded from under other than honorable conditions; to general, under honorable conditions; and then to honorable.  Now he prays that this Board will examine his case and the overall situation and restore his rank. 

3.  The applicant provides, in support of his application, copies of his DD form 214 (Certificate of Release or Discharge from Active Duty) and his Federal Bureau of Investigation Record. 

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.  On 19 July 1989, the applicant enlisted in the Regular Army (RA) and completed his initial training as a combat engineer.  He was subsequently assigned for duty in Europe.  On or about 24 March 1992, he completed his overseas tour of duty and he was returned to the United States and assigned to Fort Carson, CO.

3.  The applicant was promoted to SGT/E-5, effective 1 October 1993.

4.  Headquarters, Fort Carson and 4th Infantry Division, Fort Carson, General Court-Martial Order Number 10, dated 16 February 1993, shows that the applicant was convicted of violation of Article 120 of the Uniform Code of Military Justice (UCMJ) for rape.  Sentence was adjudged on 13 November 1992.  His sentence included a dishonorable discharge, confinement for 4 years, forfeiture of all pay and allowances, and reduction to private (PV1)/E-1.

5.  On 10 December 1993, the United States Army Court of Military Review directed that the findings of guilty and the sentence be set aside and that the charges and specifications be dismissed because the evidence was not factually sufficient to support a conviction for rape.  Upon appeal by the Government, the court upheld its decision to set aside the findings.  The applicant's rights, privileges, and property were restored.

6.  On 9 November 1994, new court-martial charges were preferred against the applicant for filing a false and fraudulent claim for more than $100.00 to the Claims Attorney for claims against the United States.  On 6 January 1995, after consulting with his defense counsel, the applicant requested to be discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His request was accepted and he was accordingly discharged under other than honorable conditions in the pay grade of E-1.

7.  Army Regulation 600-200 (Enlisted Personnel Management System) provided, in pertinent part, that when the separation authority determined that a Soldier was to be discharged from the service under other than honorable conditions, he or she would be reduced to the lowest enlisted grade.

8.  The applicant submitted two requests to the ADRB.  In 1996 the ADRB voted to upgrade the applicant's discharge to general, under honorable conditions but did not change the narrative reason and authority for the discharge.  In 2002, the ADRB upgraded his discharge to honorable and changed the narrative reason for discharge to Secretarial Authority.  

9.  The applicant's DD Form 214, as corrected based on the last decision of the ADRB shows his rank as private, pay grade E-1.  

10.  Army Regulation 635-5 (Personnel Separations - Separation Documents) 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 states that for block 4a/4b (Grade, Rate, or Rank/Pay Grade), enter active duty grade or rank and pay grade at time of separation from official personnel records.

11.  Army Regulation 635-5 further states that for block 12h (Effective Date of Pay Grade), from the most recent promotion order (or reduction instrument), enter the effective date of promotion to the current pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his rank/grade as SGT/E-5.

2.  Concomitant with the applicant's administrative discharge and his under other than honorable conditions discharge, he was reduced to the lowest enlisted rank and pay grade.

3.  The evidence shows that the applicant's discharge was upgraded to honorable and the reason for his discharge was changed to Secretarial Authority.    Based on the decisions of the ADRB, there was no remaining authority for the applicant's reduction to pay grade E-1.

4.  In view of the above, the applicant's DD Form 214 should be corrected to show his original rank/grade as sergeant (SGT)/E-5 with an effective date of pay grade as 1 October 1993. 






BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  deleting from item 4a and 4b of his DD Form 214 the entries "PV1/E1" and replacing it with the entries "SGT/E-5); and
   
   b.  deleting from item 12h of his DD Form 214 the entry "1995 01 20" and replacing it with the entry "1993 10 01."



      __________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)                                         AR20090004872



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ABCMR Record of Proceedings (cont)                                         AR20090004872



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