IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100010100 


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 restoration of his rank to sergeant first class (SFC) and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he completed 22 years and 12 days of service and award of the numeral 3 to his Noncommissioned Officer Professional Development Ribbon (NPDR).

2.  The applicant states he completed the Advanced Noncommissioned Officer Course (ANCOC) and he does not believe proper procedures were followed at the time of his discharge.  Further, his period of service should be 22 years and 12 days.  At the time of his discharge, 11 days should have been taken away from his accrued leave to account for the time he spent in jail.  This was never done; therefore, never reported.

3.  The applicant provides a self-authored statement; a medical summary, dated 11 September 2008; and evaluation reports (professional and academic) covering the period July 1975 through June 1994.

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.  He enlisted in the Army with prior service on 15 August 1974 and was honorably retired on 30 September 1996.  The highest rank he held was SFC/
pay grade E-7.

3.  A review of his official military personnel file shows the following:

	a.  He completed the Ordnance ANCOC on 9 December 1994.

	b.  On 19 October 1995, his voluntary request for retirement was approved with a retirement date of 1 September 1996.

	c.  On 3 April 1996, his duty status was changed from present for duty to confined by civilian authorities and he was charged with trafficking drugs.

	d.  On 9 April 1996, he tested positive for cocaine.

	e.  On 11 April 1996, his duty status changed to present for duty.

	f.  Headquarters, Fort Riley, memorandum, dated 2 May 1996, initiated mandatory separation processing in accordance with Army Regulation 635-200 (Enlisted Separations), paragraph 14-12c, for first time drug offenders in grades E-5 through E-9.

	g.  On 22 May 1996, the applicant's immediate commander requested that his approved retirement be withdrawn.

	h.  The Chief, Retirements and Separations Branch, approved the request to withdraw his approved retirement on 24 May 1996.

	i.  On 28 August 1996, the applicant submitted a second request for voluntary retirement with an effective date of 30 September 1996.  A memorandum from the Chief of the Military Personnel Division stated he was administratively reduced to private/E-1 effective 27 August 1996.  The record does not contain an approval memorandum.  

4.  The complete facts and circumstances as to why the applicant was honorably retired and not discharged are not available for review; however, his record contains a DD Form 214 effective 30 September 1996 which shows the following:

* item 4a (Grade, Rate, or Rank):  PV1 (administrative reduction) 
* item 4b (Pay Grade):  E1
* item 12a (Date Entered AD This Period):  1976 07 29
* item 12b (Separation Date This Period):  1996 09 30
* item 12c (Net Active Service This Period):  0020 01 24
* item 12d (Total Prior Service):  00001 11 14
* item 12h (Effective Date of Pay Grade):  1996 08 27
* item 29 (Dates of Time Lost During This Period):  19960403-19960410 
(8 days)

5.  Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he earned the following awards and decorations:  Army Lapel Button, Army Commendation Medal (5th Award), Army Achievement Medal (6th Award), Army Good Conduct Medal (6th Award), National Defense Service Medal, NPDR with Numeral 2, Army Service Ribbon, Overseas Service Ribbon (3rd Award), and Expert Marksmanship Qualification Badge with Grenade Bar.

6.  Item 14 (Military Education) shows he completed ANCOC in 1994.

7.  In support of his request to this Board, he submitted academic and professional evaluation reports which reflect satisfactory and excellent ratings over his career.  In addition, he provides a problem list with progress notes from the Psychology-Vocational Services, Topeka Veteran's Administration Division, printed on 11 September 2008.  This document shows he suffers from recurrent major depression, schizophrenia, and an unspecified schizoaffective disorder.

8.  His self-authored statement recounts the events leading up to his reduction and subsequent retirement.

	a.  He refused the company commander's request for a detail to support a training exercise because it would prevent him from completing his maintenance services and impact the readiness of the unit.

	b.  The battalion commander told him he needed to support the company commander's request, but he did not send his troops to the field exercise.

	c.  He was never counseled (orally or in writing) by anyone in his chain of command for disobeying the order.

	d.  He was denied leave to deal with marital issues due to training requirements and at this point he got into trouble because he was looking for an escape.  He tried to talk to his chain of command and was sent to the troop clinic.

	e.  His spouse contacted his battalion commander regarding his reduction and was told by the battalion commander that he did not care about the applicant's kids, family, or career.

	f.  He told the physician's assistant (PA) in the troop clinic that he "felt like killing [the battalion commander] and then let the military police kill him," but he never followed through.  The PA informed the battalion commander of the conversation; after that the battalion commander informed the senior leadership not to have anything to do with him.

	g.  He was arrested for cocaine in Junction City, KS, and spent 11 days in jail.  He was sentenced to 3 years of probation and court costs.

9.  Further, his retirement award was withdrawn.  He contends his treatment was unjust and racially prejudicial.  He was wrong, but he had been a team player.  He reached a breaking point and no one in his chain of command attempted to help him.  The Department of Veterans Affairs diagnosed him with mental issues and he feels that had there been an evaluation of his mental status at the time, the outcome would have been different.

10.  Title 10, U.S. Code, section 3961, provides the general rule for retired grade and states that unless entitled to a higher grade under some other provision of the law, a member retires in the grade he holds on the date of his retirement.

11.  The NPDR was established by the Secretary of the Army on 10 April 1981.  It is awarded to Active Army, Army Reserve, and Army National Guard Soldiers for successful completion of designated NCO professional development courses.  The NPDR consists of the basic ribbon with numeral devices 2, 3, or 4 which signify satisfactory completion of the respective levels of NCO professional development courses.  Numeral 3 signifies completion of ANCOC.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests restoration of his rank to SFC and correction of his DD Form 214 to show he completed 22 years and 12 days of service and award of the numeral 3 to his NDPR.

2.  The record confirms he completed the Ordnance ANCOC on 9 December 1994; therefore, his record should be corrected to show the numeral 3 on his previously-awarded NDPR.

3.  His contention that his total active service should be 22 years and 12 days is incorrect.  In order to determine his total active service, item 12a is subtracted from item 12b for a total of 20 years, 2 months, and 2 days.  His 8 days of lost time was then subtracted, resulting in 20 years, 1 month, and 24 days.  Finally, item 12c [0020 01 24] and item 12d [0001 11 14] were added together for a sum total of 22 years, 1 month, and 8 days of active service.  His DD Form 214 reflects the correct service time.

4.  The evidence of record shows he was administratively reduced to PV1 for cause as a result of a positive urinalysis for cocaine and a civil conviction for drug trafficking.  As a result, absent any evidence of error or injustice related to his reduction in rank, there is insufficient evidence to support restoring his grade.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that item 13 of the applicant's DD Form 214 be corrected by deleting the numeral 2 and adding the numeral 3 to his previously-awarded NPDR.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the restoration of his rank to SFC and correction of his active duty service time.



      _____________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)                                         AR20100010100



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ABCMR Record of Proceedings (cont)                                         AR20100010100



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