IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090014297 


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, restoration of his promotion to private first class (PFC)/E-3.

2.  The applicant states, in effect, he served in combat during Operation Iraqi Freedom between 2003 through 2004.  He requests his rank be restored to 
PFC/E-3 based on the 2006 upgrade of his discharge.  He requests the upgrade to remove the stigma attached to the private (PV1)/E-1 rank listed on his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) relative to his time in service and the embarrassment attached to that rank.

3.  The applicant provides his DD Form 214 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 he enlisted in the Regular Army (RA) on 
22 January 2002.  It also shows he trained in and he was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  His Enlisted Record Brief (ERB) shows, in Section III (Service Data), that he was promoted to
PFC/E-3 on 22 January 2003.

3.  On 4 May 2004, the applicant was reduced as a result of his acceptance of battalion level non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for three specifications of willfully disobeying a lawful order from a senior noncommissioned officer (NCO) on
3 February 2004, 16 March 2004, and 24 March 2004; dereliction in the performance of his duty on 19 March 2004; and three specifications of failing to go at the time prescribed to his appointed place of duty on 17 March 2004, 22 March 2004, and 24 March 2004.  His punishment included reduction to PV1/E-1; forfeiture of $596.00 pay per month for two months, suspended, to be automatically remitted if not vacated before 30 October 2004; and 45 days of restriction and extra duty.

4.  On 27 September 2004, the unit commander notified the applicant that he was initiating action to separate him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), by reason of misconduct - commission of a serious offense.  The commander cited his reasons for his proposed actions were the applicant's willfully disobeying lawful orders on three separate occasions, dereliction of duty, and failure to go to his appointed place of duty on numerous occasions.

5.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of a waiver of his rights.  Subsequent to this counseling, the applicant waived his right to have his case considered by a board of officers, his right to a personal appearance before a board of officers, and his right to consulting counsel.

6.  On 25 October 2004, the separation authority approved the applicant’s separation and directed that he receive a general, under honorable conditions discharge (GD).  The DD Form 214 the applicant was issued upon his discharge on 16 November 2004 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct.  Item 4a and b of his DD Form 214 shows he held the rank/grade of PV1/E-1 on the date of his discharge.  Item 12h (Effective Date of Pay Grade) confirms his PV1 date of rank was 4 May 2004.

7.  On 27 February 2006, the Army Discharge Review Board (ADRB) reviewed the applicant's petition for an upgrade of the characterization of service and a change to the reason for discharge.  The ADRB determined that the applicant's discharge was improper because the separation approval authority was someone other than the general court-martial convening authority (GCMCA) who was the separation authority based on the unit commander using board procedures when initiating action to separate the applicant.  As a result, his discharge was upgraded to an honorable discharge (HD) and the reason for his discharge changed to Secretarial Authority.  The ADRB further determined this action did not entail a change to the applicant's reentry code or restoration of his rank.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item-by-item DD Form 214 preparation instructions.  The instructions for items 4a and 4b state, in effect, to enter the rank and pay grade held by the member on the date of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that based on the ADRB having upgraded his discharge from a GD to an HD his rank of PFC should be restored in order for him to avoid the embarrassment and stigma attached to the PV1 rank currently listed on his DD Form 214.  However, this factor is not significantly mitigating to support granting the requested relief.

2.  By regulation, the rank and pay grade held by the member on the date of separation will be entered on the DD Form 214.  The evidence of record confirms the applicant was promoted to PFC on 22 January 2003 and he was reduced from that rank to PV1 for cause on 4 May 2004, as a result of NJP action.  This reduction was not based on his misconduct separation.  Further, the ADRB determined the upgrade and change of reason for his discharge did not entail restoration of his grade.  Therefore, there is an insufficient evidentiary basis to support granting the applicant's requested relief.

3.  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)                                         AR20090014297



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ABCMR Record of Proceedings (cont)                                         AR20090014297



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