BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090019663 


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 his correct rank at the time of his discharge from the U.S. Army Reserve (USAR).

2.  The applicant states his rank at the time of his separation from active duty on 7 July 2006 was sergeant (SGT)/E-5.  This was also his correct rank when he was discharged from the USAR on 19 November 2008; however, his orders show he was a specialist (SPC)/E-4.

	a.  He states he was promoted to SGT shortly after the attack on the World Trade Center and he served in support of Operation Iraqi Freedom (OIF) 1, 3, and 4.

	b.  He states he has frequently been the victim of mistreatment based on his race, ethnicity, and background.

	c.  He adds that a memorandum from the Army Board for Correction of Military Records (ABCMR), dated 8 September 2008, advised him that a review of his Official Military Personnel File (OMPF) maintained in the interactive Personnel Electronic Records Management System (iPERMS) revealed that there are no Article 15's on file.  Consequently, there is no basis for the reduced rank shown on his discharge orders.

3.  The applicant provides copies of his resume, three memoranda, and his separation documents.


CONSIDERATION OF EVIDENCE:

1.  The applicant had enlisted service in the New York Army National Guard (NYARNG) from 12 February 1986 through 11 February 1987; USAR from
12 February 1987 through 20 March 1988; NYARNG from 21 March 1988 through 7 November 2002; and the USAR from 8 November 2002 through
19 November 2008.  He was trained in and awarded military occupational specialty 11B (Infantryman).

2.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was ordered to active duty in support of OIF on 27 July 2004.  He served in Kuwait from 7 to 18 September 2004 and in Iraq from 19 September 2004 to 10 May 2006.

	a.  He was honorably released from active duty (REFRAD) on 7 July 2006 based on completion of required active service and transferred to his USAR unit.

	b.  Item 4a (Grade, Rate or Rank) shows the entry "SGT"; item 4b (Pay Grade) shows "E05"; and item 12 (Record of Service), block h (Effective Date of Pay Grade), shows "2001 10 01" (i.e., 1 October 2001).

3.  On 20 June 2008, the applicant submitted an application to this Board requesting removal of two Article 15's from his OMPF.

	a.  He provided a copy of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), initiated on 21 October 2007, as an enclosure to his application.  The block for his grade shows "SGT."

		(1)  He was charged with failing to go at the time prescribed to his appointed place of duty; behaving with disrespect toward a superior commissioned officer; and willfully disobeying a lawful order from a noncommissioned officer.

		(2)  On 17 November 2007, having been afforded the opportunity to consult with counsel, he did not demand trial by court-martial, he requested a closed hearing, he requested a person to speak on his behalf, and he indicated matters in defense, mitigation, and/or extenuation would be presented in person.

		(3)  On 18 November 2007, all matters being considered, the punishment imposed included reduction to E4 and a $500.00 fine.


		(4)  The battalion commander directed the DA Form 2627 be filed in the performance section of the applicant's OMPF.
   
   (5)  The applicant indicated that he did not appeal the Article 15.

	b.  On 8 September 2008, the ABCMR notified the applicant that there were no DA Forms 2627 on file in his OMPF at the time.  The applicant's case was returned without prejudice and without action being taken by the Board.

4.  Headquarters, Civil Affairs and Psyop Command, Fort Bragg, NC, Orders
08-323-00010, dated 18 November 2008, honorably discharged the applicant from the USAR effective 19 November 2008.  The Standard Name Line of the orders shows the applicant's rank as "SPC."

5.  Headquarters, U.S. Army Human Resources Command, St. Louis, MO, memorandum, dated 4 March 2010, notified the applicant of his eligibility for retired pay at age 60 (20-Year Letter).  This document shows the applicant's rank as "SPC."

6.  The applicant's Total Army Personnel Data Base (TAPDB) electronic record, accessible via the U.S. Army Human Resources Command Integrated Web Services (IWS) portal shows the applicant's rank as "SPC" and a date of rank of 8 December 2007.

7.  There is no evidence the applicant was promoted to SGT subsequent to
8 December 2007 and prior to the date he was discharged from the USAR on
19 November 2008.

8.  In support of his application, the applicant provides the following documents:

   a.  His resume in which he offers a summary of his citizenship, civilian employment, and military service.  He indicates he served in the rank of SGT.
   
   b.  Headquarters, 173rd Airborne Brigade, Kirkuk, Iraq, memorandum, dated 26 November 2003, subject:  Deployment Awards for OIF, that shows his rank at the time was SGT.
   
   c.  Headquarters, 411th Civil Affairs Battalion, Forward Operating Base Danger [Iraq], memorandum, dated 29 May 2005, subject:  Statement of Service, that shows his rank at the time was SGT.

   d.  Headquarters, 322nd Civil Affairs Brigade, Baghdad, Iraq, memorandum, dated 27 March 2006, subject:  Statement of Service, that shows his rank at the time was SGT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the rank shown on his discharge orders should be corrected because there is no record of punishment under Article 15, UCMJ, to show he was reduced to SPC.

2.  Records show the applicant was promoted to SGT effective 1 October 2001.

3.  There was no record of a DA Form 2627 (Article 15) in the applicant's OMPF.  

   a.  On 20 June 2008, the applicant provided a copy of a DA Form 2627 to the ABCMR requesting its removal from his OMPF.

   b.  The document shows that the punishment imposed against the applicant by the commander was reduction from SGT to SPC and a $500.00 and that the DA Form 2627 would be filed in the performance section of his OMPF.

   c.  While the DA Form 2627 was not filed in the applicant's OMPF, there is no reason to conclude that the document is invalid.  In fact, the evidence of record supports this conclusion.  Thus, it is concluded that his reduction to SPC on
8 December 2007 was based on the punishment imposed under this Article 15.

4.  There is no evidence, and the applicant provides insufficient evidence, to show that he was promoted to SGT subsequent to his reduction to SPC and prior to the date of his discharge from the USAR on 19 November 2008.

5.  The orders that discharged the applicant from the USAR on 19 November 2008 show his rank as SPC.  The applicant's 20-Year Letter and the TAPDB database also show his rank as SPC.

6.  Based on the foregoing and the available evidence, it is concluded that the applicant's rank is correct as shown on his discharge orders and in his military service records.  Therefore, there is no basis for granting the applicant's requested relief.

7.  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)                                         AR20090019663



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ABCMR Record of Proceedings (cont)                                         AR20090019663



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