IN THE CASE OF:	  

		BOARD DATE:	    8 June 2010

		DOCKET NUMBER:  AR20090021244 


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 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 25 June 1971 and other applicable military records to show his rank as specialist four (SP4)/pay grade E-4 instead of private (PV2)/pay grade E-2.

2.  The applicant states, in effect, he held the rank/pay grade of SP4/E-4 at the time of his separation.  He also states that he did not discover this error sooner due to the fact he suffers from 100-percent service-connected paranoid schizophrenia.

3.  The applicant provides a copy of his DD Form 214 for the period ending 25 June 1971 and a letter of commendation, dated 11 June 1970, as evidence 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 was inducted into the Army of the United States on 3 October 1967.  He successfully completed basic combat and advanced individual training. 
Upon completion of training he was awarded military occupational specialty 36K (Field Wireman).  The applicant was advanced to the temporary rank/grade of SP4/E-4 on 27 February 1969 and that was the highest rank he attained prior to being honorably released from active duty and transferred to U.S. Army Reserve Control Group (Annual Training) on 27 September 1969.

3.  On 15 December 1969, the applicant enlisted in the Regular Army for a period of 3 years in the rank/grade of private (PV1)/E-1.

4.  The applicant provides a letter of commendation he received from the commander of the 97th Quartermaster Battalion on 11 June 1970 wherein his rank appears as SP4.

5.  The applicant's record contains Headquarters, 97th Quartermaster Battalion, Special Orders Number 30, dated 16 February 1971, which show he was reduced in rank/pay grade from SP4/E-4 to PV1/E-1 with a date of rank and effective date of 25 September 1970 under the provisions of Article 15 of the Uniform Code for Military Justice (UCMJ) due to misconduct.

6.  The applicant was advanced to rank/pay grade PV2/E-2 on 1 April 1971.  His record is void of any evidence and he has failed to provide any evidence that he was subsequently advanced to the rank/pay grade of SP4/E-4.

7.  The applicant's record contains a discharge packet throughout which his rank/pay grade consistently appears as PV2/E-2, to include a document he signed on 5 April 1971.

8.  The applicant's record contains Headquarters, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, Georgia, Special Orders Number 175, dated 24 June 1971, which show he was assigned to the U.S. Army Transfer Point at Fort Gordon for the purpose of separation processing with a reporting date and discharge date of 25 June 1971.  His rank/pay grade appears as PV2/E-2 on these orders.

9.  On 25 June 1971, the applicant was discharged accordingly.  Item 5a (Grade, Rate, or Rank) of the DD Form 214 issued to him at the time of his separation contains the entry "PV2" and item 5b (Pay Grade) shows the entry "E-2."

10.  Army Regulation 27-10 (Military Justice) states that commanders may impose nonjudicial punishment for the administration of discipline under the provisions of Article 15 of the UCMJ.  Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15.  This regulation also stipulates that only one appeal is permissible under Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides that Soldiers may be reduced in rank and grade as a result of misconduct in violation of the UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he held the rank/grade of SP4/E-4 at the time of his separation was carefully considered and determined to lack merit.

2.  The evidence shows the applicant committed an act of misconduct which was in violation of the UCMJ and he was subsequently reduced in rank/grade from SP4/E-4 to PV2/E-2 as a result of this action.

3.  His record is void of any evidence and he has failed to provide any evidence that he was subsequently advanced to the rank/pay grade of SP4/E-4.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the requested 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)                                         AR20090021244



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ABCMR Record of Proceedings (cont)                                         AR20090021244



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