IN THE CASE OF:
BOARD DATE: 1 December 2009
DOCKET NUMBER: AR20090008048
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 military records be corrected to show his pay grade as E-5 instead of pay grade E-1.
2. The applicant states, in effect, that:
a. he was reduced in grade as a result of receiving three Article 15s;
b. the Article 15s he received were unjust because he was unable to work due to injuries; and
c. he was promoted to pay grade E-5 and reenlisted prior to receiving the Article 15s.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 25 June 1972.
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 applicants 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 applicants 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 Regular Army on 1 February 1971 and successfully completed basic training and advanced individual training. He was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).
3. On 5 May 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period 3 May 1971 through 4 May 1971.
4. On 27 September 1971, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 5 September 1971 through 22 September 1971.
5. On 20 January 1972, the applicant was promoted to the rank and pay grade of specialist four (SPC4)/E4.
6. On 16 March 1972, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty.
7. On 22 March 1972, the applicant accepted NJP under Article 15, UCMJ for two specifications of failing to be at his appointed place of duty. His punishment consisted of reduction to private first class (PFC)/E-3.
8. On 4 April 1972, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty and disobeying a lawful order. His punishment consisted of reduction to private (PVT)/E-2 (suspended for 60 days) and forfeiture of $50.00 pay per month for one month.
9. On 14 April 1972, the applicant accepted NJP under Article 15, UCMJ for two specifications of failing to be at his appointed place of duty. His punishment consisted of reduction to private (PVT)/E-1.
10. On 25 June 1972, the applicant was discharged with an unsuitability discharge after completing 1 year, 4 months, and 8 days of creditable active service with 21 days lost due to AWOL. Item 5a (Grade Rate or Rank) of the applicant's DD Form 214 shows the entry "PVT 1" and item 5b (Pay Grade) shows the entry "E-1." Item 13a (Character of Service) shows the entry "UNDER HONORABLE CONDITIONS."
11. There are no special orders in the applicant's service personnel records promoting him to E-5 while he was on active duty nor are there any enlistment documents showing he reenlisted prior to his discharge.
12. Army Regulation 600-200, chapter 7 of the version in effect at the time, prescribed the promotion policy to pay grades E-4 through E-9 and the selection board process. It stated that a waiver of the requirement to appear before a selection board would not be granted. The board would consist of both officers and enlisted appointed by the appropriate promotion authority to select individuals for promotion to pay grades E-5 through E-9. A list of the individuals recommended by the board and selected by the promotion authority, in the order they were to be promoted, would be published.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his reduction in grade to PVT as a result of Article 15s was unjust. However, there is no evidence and the applicant has not provided evidence to show his punishment was unjust or harsh. Therefore, there is insufficient evidence to support this argument.
2. The applicant contends that he was promoted to the grade of E-5. However, there is no evidence in his military records that shows he was promoted to the grade of E-5 and he has not provided evidence that shows he was recommended for promotion to the grade of E-5.
3. More importantly, there is no evidence in the applicant's records that shows he appeared before a promotion board prior to being discharged. In addition, the applicants records show that he was reduced in grade as a result of receiving three Article 15s. Therefore, his DD Form 214 with the ending period 25 June 1972, which shows his grade rank of "PVT 1," is correct.
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.
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