IN THE CASE OF:
BOARD DATE: 29 June 2010
DOCKET NUMBER: AR20090017631
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 records be corrected to show he was a specialist, E-4 at the time of separation.
2. The applicant states he received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, that reduced him to pay grade E-1, but the punishment was suspended.
3. The applicant provides no supporting documentation.
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 are not complete. A number of entries on pertinent source documents are either missing or incomplete.
3. The applicant enlisted in the Regular Army as a private (PV1)/E-1 on 8 March 2001.
4. An SGLV-8286 (Servicemembers' Group Life Insurance Election and Certificate), dated 5 April 2002, shows the applicant as a private first class/E-3.
5. A DD Form 2648 (Preseparation Counseling Checklist), dated 31 December 2003, shows the applicant as a PV1.
6. Headquarters, 101st Airborne Division (Air Assault), Orders 364-0034, dated 30 December 2003, reassigning the applicant to the transition point effective 7 March 2004 show him as a PV1.
7. The record does not contain any evidence of the NJP the applicant indicates he received. However, a review of his pay records shows he was an E-4 from 1 October 2002 through 10 June 2003. He was reduced to E-1 effective 11 June 2003 and remained in that pay grade through his date of discharge on 7 March 2004.
8. His Enlisted Record Brief is dated 22 August 2001 and, as such, is of no clarifying value.
9. His DA Form 2-1 (Personnel Qualification Record - Part II) block 18 (Appointments and Reductions) shows only his initial entry rank and pay grade of PV1/E-1.
10. His DD Form 214 shows he was released honorably from active duty as a PV1/E-1 with 3 years of creditable service with no lost time.
11. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence
DISCUSSION AND CONCLUSIONS:
1. The applicant states he received NJP that reduced him to pay grade E-1, but the reduction portion of the punishment was suspended.
2. The applicant's pay records show he was reduced to PV1 effective 11 June 2003 and received pay in that grade for 9 months prior to his separation.
3. The record does not contain a copy of the NJP and the applicant has not provided any evidence to show that his reduction in grade was suspended. In the absence of a copy of the NJP showing his reduction to PV1 was suspended, the Board must presume regularity and accept that he was properly reduced.
4. 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) AR20090017631
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ABCMR Record of Proceedings (cont) AR20090017631
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