IN THE CASE OF:	  

		BOARD DATE:	       24 September 2009

		DOCKET NUMBER:  AR20090007143 


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 reinstatement of his rank.  In effect, he requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his rank/grade as that of specialist four (SP4)/E-4 instead of private first class (PFC)/E-3. 

2.  The applicant states that he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 21 May 1975 and was given a reduction from SP4/E-4 to PFC/E-3.  However, since he had been recommended for promotion to sergeant (SGT)/E-5 at the time, his reduction served to lower his rank by two, and, since he had a commendable military record, he feels that his punishment was too harsh and suggests that a lesser punishment in the form of an oral reprimand or restricted duty would have been more appropriate.  He further states that:

	a.  he excelled during basic combat and advanced individual training and was selected to represent the Army in a publicity and recruitment road show to encourage young Americans to enlist.  He also received a certificate of achievement for this effort.  Many years later, he continued his service to his country by authoring a book about strategies for recruiting success and that his book was adopted by officials at the U.S. Army Recruiting Command (USAREC) as a required reading by COMPANY commanders;

	b.  he enlisted for 36 months under the school of choice enlistment option and was told by his recruiter at the time that he only had to serve 30 months and could elect to take an early out program to attend college.  However, two years later, the Army changed the policy for that specific enlistment option from 36 months to 24 months.  He (the applicant) then applied for a reduced commitment under the new policy but was unjustly denied despite the recommendation by the Adjutant General at Fort Belvoir, VA.  He adds that when he learned of the denial of his request, he became despondent and in what he now considers an ill-conceived, desperate act of protest, he came to work the next day without having shaved and without the proper uniform; and

	c.  he has regretted the way he exited the Army over the years, and he is very sorry for acting out as he knew then he should not have disobeyed a lawful order (related to proper military uniform).  He adds that the Article 15 was his own fault. This has bothered him greatly over the years and since this was his only offense, he would like his unblemished record of service not to be inappropriately tarnished.  He held his SP4/E-4 rank for over 26 months out the 32 and half months of active service and he wants that rank back. 

3.  The applicant provides a copy of his DD Form 214 and a copy of his Honorably Discharge Certificate, dated 16 June 1975; a copy of a certificate of achievement, dated 10 April 1975; a copy of a certificate of training, dated 7 December 1972; a copy of an extract of USAREC Pamphlet 350-2-3 (Recruiting Company Commander Development); a copy of his DA Form 2496 (Disposition Form), dated 5 December 1974, requesting an early discharge from the Army; a copy of the endorsement, dated 6 March 1975 by the Fort Belvoir, VA, Adjutant General; a copy of the Department of the Army endorsement, dated 28 March 1975, disapproving his request for an early discharge; a photograph of himself; and a copy of a diploma, dated 4 May 1973, showing completion of the Audio Specialist Course, 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's records show that he enlisted in the U.S. Army Reserve for a period of 6 years under the Delayed Entry Program (DEP) on 11 September 1972.  He subsequently enlisted in the Regular Army for a period of 3 years in the rank/grade of private (PVT)/E-1 on 6 November 1972.  Item a (Enlistment Option) of the DA Form 3286-4 (Statement for Enlistment-Army Service School Enlistment Option) shows the applicant enlisted for course number 191-84D2O-Audio Specialist.  This option was selected in accordance with Table 5-4 of Army Regulation 601-210 (Active Components Enlistment Program) and carried a 3-year enlistment commitment.

3.  The applicant’s records further show he completed basic combat training at Fort Leonard Wood, MO, and having demonstrated outstanding Soldierly qualities, he earned an accelerated promotion to private (PV2)/E-2 on 19 January 1973.  He also completed advanced individual training at Fort Monmouth, NJ, and was awarded military occupational specialty 84D (Audio Specialist).  

4.  The applicant’s records also show he was assigned to the U.S. Army Engineer School Brigade (USAESBDE), Fort Belvoir, VA.  He was promoted to PFC/E-3 on 27 April 1973 and SP4/E-4 on 4 May 1973.  

5.  On 5 December 1974, the applicant submitted a request for an early discharge from active duty.  He based his request on a change in Army policy with regard to the length of service incurred as a result of enlisting under the Army Service School Enlistment Option from 3 years to 2 years.  In the alternative, he requested a 6-month early out.  

6.  On 28 March 1975, Headquarters, Department of the Army, disapproved the applicant’s request for an early discharge from active duty.  The applicant was notified that at the time he enlisted, the enlistment commitment was for 3 years and that he was expected to fulfill his contractual obligations.

7.  On 21 May 1975, the applicant accepted NJP under the provisions of article 15 of the UCMJ for failing to go at the prescribed time to his appointed place of duty and reaming absent on or about 9 May 1975 and willingly disobeying a lawful command from a superior commissioned officer to put on his uniform on or about 12 May 1975.  His punishment consisted of a forfeiture of $95.00 pay for 1 month and a reduction to PFC/E-3.  The applicant elected not to appeal his punishment.




8.  On 2 June 1975, the applicant was referred for a psychiatric evaluation at the Mental Hygiene Clinic, Fort Belvoir, VA.  The military physician indicated that the applicant had no disqualifying mental disease or condition that warranted disposition through medical channels.  His performance was rated as excellent, but he demonstrated some positive aggressive acting out as well as apathy and lack of motivation toward military service.  

9.  On 4 June 1975, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of chapter 13-5b of Army Regulation 635-200 (Personnel Separations) by reason of unsuitability.  

10.  On 5 June 1975, the applicant acknowledged receipt of the notification and was advised by counsel of the contemplated separation for unsuitability under the provisions of chapter 13 of AR 635-200 and its effects, of the rights available to him, and the effect of any action taken by him in waiving those rights.  He further indicated that he understood that he may encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him and that he further understood that as the result of issuance of a discharge under other than honorable conditions, he may be ineligible for many or all benefits as a veteran under both Federal and state laws.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  

11.  On 5 June 1975 (erroneously shown as 4 June 1975), the applicant’s immediate commander initiated action recommending the applicant’s separation in accordance with chapter 13 of AR 635-200 for unsuitability by reason of apathy, lack of appropriate interest, defective attitude and inability to expend efforts constructively.  The immediate commander remarked that the discharge was recommended because of the habits and traits of character repeatedly manifested by the applicant and that the applicant had shown no indication that he would ever become a satisfactory Soldier or that he would serve any useful service while in the Army.

12.  On 9 June 1975, by statement, the applicant’s immediate commander remarked that the applicant was counseled by him on at least 25 occasions as early as December 1974 and most recently on 8, 12, and 15 May 1975.  The immediate commander added that after his failure to obtain an exception to policy through letters to his Congressman and the Secretary of the Army, he let his frustration manifest itself into a severe behavioral disorder.  Although he always tried his best, his recent disenchantment resulted in his failure to report to work, failure to wear a uniform, shave, and a corresponding lack of motivation. His apathy and defective attitude, which became a prominent factor in his daily behavior, were certainly grounds for a discharge.

13.  On 9 June 1975, the applicant’s intermediate commander recommended approval of the applicant’s unsuitability discharge.  

14.  On 11 June 1975, the separation authority approved the applicant's discharge under the provisions of chapter 13 of Army Regulation 635-200 for unsuitability and directed that he receive an Honorable Discharge Certificate.  Accordingly, the applicant was discharged on 16 June 1975.  The DD Form 214 he was issued at the time confirms he completed 2 years, 7 months, and 11 days of creditable active military service.  Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) show the entries PFC and E-3 and item 5 (Date of Rank) shows the entry 21 May 1975. 

15.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that items 4a and 4b show the active duty rank and pay grade at time of the Soldier's separation, from the Soldier’s promotion/reduction orders; and item 5 shows the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show his rank/grade as SP4/E-4 instead of PFC/E-3.

2.  The evidence of record shows that the applicant was reduced to PFC/E-3 as a result of accepting NJP on 21 May 1975.  There is no evidence in the available record and the applicant did not provide any evidence that shows he was promoted again to SP4/E-4 subsequent to his reduction and prior to his discharge.  Therefore, the entries in Items 4a, 4b, and 5 are correct and require no further correction.  There is neither an error nor an injustice.

3.  The applicant’s excellent service record, his contributions to the Army, and his noble cause to seek an early out at the time are noted.  However, this did not mean he could take military law into his own hands and break it out of frustration. He is right in that his ill-conceived, desperate act of protest that led to the Article 15 was his own fault.   

4.  There is no indication in the applicant's service record that he was promotable at the time of his offense; nevertheless, it was noted.  Furthermore, notwithstanding the applicant's argument that the punishment was excessive, the governing regulation states that whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander

5.  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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the 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)                                         AR20090007143





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ABCMR Record of Proceedings (cont)                                         AR20090007143



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