IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090019450 


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 correction of his records to show he was discharged in the rank/grade of specialist four (SP4)/E-4 instead of private (PVT)/E-1.

2.  The applicant states he joined the Army in 1976 and he was honorably discharged in 1978.  He reenlisted in 1978 and got out in 1979.  He was having problems with his shoulder which he injured in jump school and problems carrying his equipment when he was at Fort Carson, CO.  He had a lot of depression and was asked to be released.  His grade was reduced to PVT/E-1.  He was young and could not cope with the training at Fort Carson.  He told his sergeants about his shoulder injury and his depression and they recommended a meeting with the chaplain who ultimately helped him get discharged.  He believed he would receive an honorable discharge but would be dropped to PVT/E-1.  He agreed.  This has been eating him for over 30 years.  He would like his plaque to show his rank/grade as a SP4/E-4, not PVT/E-1.

3.  The applicant provides a copy of a Certificate of Military Service, dated 11 June 1999, in support of his request.

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 was born on 20 December 1957 and he enlisted in the Regular Army at 18 years of age for a period of 3 years on 20 January 1976.  He held military occupational specialty 11B (Infantryman) and he was promoted to private first class (PFC)/E-3 on 15 November 1976 and SP4/E-4 on 15 March 1977.  

3.  He was honorably discharged on 29 August 1978 and he executed a 4-year reenlistment in the rank/grade of SP4/E-4 at 20 years and 8 months of age on 30 August 1978.

4.  On 19 October 1978, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to be at the time prescribed at his appointed place of duty on or about 10 October 1978 and being absent without leave (AWOL) on or about 13 October 1978.  His punishment consisted of a reduction to PFC/E-3, 14 days of extra duty, and a suspended forfeiture of pay.

5.  On 22 January 1979, his immediate commander notified him of his (the commander's) intent to initiate action to effect the applicant's discharge from the Army under the provisions of chapter 13-4 of Army Regulation 635-200 (Personnel Separations) by reason of unsuitability. 

6.  His records contain an extensive history of negative counseling by several members of his chain of command for various infractions including poor appearance and negative attitude, poor performance, disrespect toward superiors, a history of failure to repair, and failure to follow instructions. 

7.  On 8 March 1979, he acknowledged receipt of the notification of his pending separation action and he was advised by counsel of the basis for the contemplated action to separate him for unsuitability.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, waived representation by counsel, and elected not to submit a statement.  He further indicated he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.  

8.  On 26 March 1979, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL, disobeying a lawful order, and failing to go at the time prescribed to his appointed place of duty on or about 18 March 1979.  His punishment consisted of a reduction to PVT/E-1, a forfeiture of $209.00 pay for 2 months, and 30 days of extra duty.

9.  On 28 March 1979, subsequent to the recommendation of his immediate and intermediate commanders, the separation authority approved the applicant’s discharge under the provisions of chapter 13-4 of Army Regulation 635-200 by reason of unsuitability and directed he be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 10 April 1979.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of paragraph 13-4c of Army Regulation 635-200 with an under honorable conditions character of service.  Items 6a (Grade, Rate or Rank) and 6b (Pay Grade) show the entries PV1 and E-1 respectively.

10.  There is no indication that the applicant was promoted beyond the rank/grade of PV1/E-1 from the time he was reduced to the time he was discharged.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation, in effect at the time, provided for separation due to inaptitude, personality disorder, apathy and homosexuality.  Paragraph 13-4c provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  The regulation requires that separation action will be taken, when in the commander’s judgment the individual will not develop sufficiently to participate satisfactorily in further military training and/or become a satisfactory soldier.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

12.  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.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 6a and 6b of the DD Form 214, in effect at the time, show the Soldier's rank and pay grade at the time of separation.  
DISCUSSION AND CONCLUSIONS:

1.  The evidence of records shows he was 18 years of age at the time of his enlistment and nearly 21 years of age at the time of his reenlistment and his first NJP.  However, there is no evidence that he was any less mature than other Soldiers who successfully completed their periods of enlistment.

2.  The evidence of record shows he accepted NJP on 26 March 1979 for various infractions that resulted in his reduction to PVT/E-1.  He was ultimately discharged for unsuitability on 10 April 1979.  There is no evidence that he was promoted beyond the rank/grade of PV1/E-1 from the time he was reduced to the time he was discharged.  Therefore, his rank and grade are correctly shown on his DD Form 214.

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.  He did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to 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)                                         AR20090019450



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ABCMR Record of Proceedings (cont)                                         AR20090019450



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