IN THE CASE OF:	  

		BOARD DATE:	  10 September 2009

		DOCKET NUMBER:  AR20090005922 


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 that his rank/grade at the time of his separation be restored to specialist (SPC)/E-4.

2.  The applicant states, in effect, that he lost a child during his final day of honorable service.  He admits that he made a horrible mistake by smoking "pot" after the funeral.  The applicant states that he was reduced in rank and grade when he returned to his unit.

3.  The applicant provides no documentary evidence in support of his application.

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 enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 18 June 1990.  He was discharged from the USAR DEP on 10 June 1991 and he enlisted in the Regular Army (RA) on 11 June 1991.  He successfully completed basic combat and advanced individual training (AIT).  Upon completion of AIT, the applicant was awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Infantryman).  At a later date, the applicant reclassified into MOS 13B (Cannon Crewmember).  The applicant was advanced to the rank/grade of SPC/E-4 on 11 August 1994 and that was the highest rank he attained while serving on active duty.  However, at the time of his separation, the applicant held the rank/grade of private (PV2)/E-2 with an effective date of rank of 14 May 1996.

3.  On 12 March 1996, the applicant’s unit commander notified him, in effect, that he was initiating action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-13, by reason of personality disorder.  The unit commander informed the applicant that he was recommending that the applicant receive a characterization of service of "honorable."  The commander also informed the applicant that the basis for his proposed action was that following consult with a mental health doctor, he was convinced that separation was in the best interest of the Army.  The commander also noted that the applicant had a long maladaptive behavior since junior high school and the fact that he was hospitalized at Fort Bragg, NC, for homicidal ideation towards his co-workers.  The commander also noted that on several occasions, the applicant had difficulty controlling his temper and behavior at work.  He then informed the applicant that the mental health doctor had opined that it was simply a matter of time before his ability to perform his duties would be affected and that the doctor did not believe he would respond to rehabilitative treatment.

4.  On 19 April 1996, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-13, for a personality disorder.  The separation authority directed that the applicant be discharged from the military service and issued an Honorable Discharge Certificate.  The separation authority determined that the applicant had no potential for useful service under conditions of full mobilization and directed that he should not be transferred to the Individual Ready Reserve (IRR).

5.  On 29 May 1996, the applicant was honorably discharged from the Army.  Item 4a (Grade, Rate, or Rank) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time of his separation shows the entry PV2 and Item 4b (Pay Grade) shows the entry E-2.


6.  The complete facts and circumstances of the applicant's reduction from the rank/grade of SPC/E-4 to PV2/E-2 are not contained in his available records.
The applicant's rank consistently appeared as SPC throughout his discharge packet.  The separation authority did not direct that the applicant be reduced in rank and grade.

7.  Article 112a (Wrongful use, possession, etcetera, of controlled substances) of the Uniform Code of Military Justice (UCMJ) provides that any Soldier who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces marijuana into an installation, vessel, vehicle, or aircraft used by or under the control of the armed forces shall be punished as a court-martial may direct.

8.  Army Regulation 27-10 (Military Justice), in pertinent part, states that commanders may impose nonjudicial punishment for the administration of discipline under the provisions of Article 15 of the UCMJ.  Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15.  This regulation also stipulates that only one appeal is permissible under Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides that Soldiers may be reduced in rank and grade as a result of misconduct in violation of the UCMJ.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by restoring his rank/grade to SPC/E-4 at the time of his separation was carefully considered and determined to lack merit.

2.  By his own admission, the applicant abused a controlled substance, which was in violation of Article 112a of the UCMJ, during the final days of his active duty service and he was subsequently reduced in rank/grade as a result of this action

3.  Although the complete facts and circumstances of the applicant's reduction from the rank and grade of SPC/E-4 to PV2/E-2 are not contained in his available records, it is reasonable to presume his chain of command exercised its disciplinary authority prior to the applicant's discharge.

4.  The ABCMR operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  In the absence of evidence to the contrary, it must be presumed that the applicant was reduced in rank and grade from SPC/E-4 to PV2/E-2 as a result of his chain of command imposing punishment for his violation of the UCMJ.  Accordingly, it must also be presumed that it would not be appropriate under the circumstances in this case to grant 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)                                         AR20090005922



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ABCMR Record of Proceedings (cont)                                         AR20090005922



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