IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100013142 


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 purged of all references to the imposition of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ); that his rank be restored; that his reentry eligibility (RE) code be corrected; and that the pay taken as a result of these errors be refunded.

2.  The applicant states he never signed any NJP document and he was never reduced in rank.  His former first sergeant will verbally testify to these facts.

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 enlisted in the Regular Army on 4 May 1977, completed training, and was awarded military occupational specialty 13B (Cannoneer).

3.  The record contains a DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 7 December 1979, showing the applicant accepted NJP as a specialist four (SP4) for the violation of a general regulation.  His punishment was reduction to private first class (PFC) (suspended until 6 June 1980), forfeiture of $127.00 pay, and 14 days of extra duty.  This form bears the applicant's signatures in item 4 and item 7.

4.  On 4 January 1980, the battery commander vacated the suspension of the reduction in rank.  The reason for the vacation is not of record.

5.  The applicant was honorably released from active duty on 3 May 1980.  The DD Form 214 printed from the applicant's microfiche record shows he was honorably released from active duty as a PFC/E-3 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  The separation program designator (SPD) is shown as LBK (expiration of term of service) and the RE code is shown as "3."

6.  The applicant enlisted in the USAR on 21 June 1986 and retrained as a 75B (Personnel Administration Specialist).  He served on active duty in the USAR Active Guard Reserve from 14 July 1986 through 15 February 1989.

7.  On 15 February 1989, the applicant was discharged for misconduct for minor disciplinary infractions with a characterization of service of under honorable conditions.

8.  During his second period of service, the applicant applied to the ABCMR for correction of his records.  On 23 May 1989, the ABCMR administratively closed the request for a restoration of the applicant's rank.

9.  The earlier application included the following:

	a.  a copy of the applicant's 1980 DD Form 214 with pen and ink changes to his rank showing PFC erased and sergeant (SGT) handwritten in and the "3" in E-3 is over written with a "5";

	b.  one page of a DA Form 2-1 showing entries indicating he was promoted to SGT on the same date he was reduced to PFC;

	c.  copies of his leave and earnings statements (LES) showing the withholding of his imposed forfeiture and his reduction in pay grade to PFC as a result of NJP action; and

	d.  an advisory opinion from the Chief, Personnel Actions Branch, U.S. Army Enlisted Records and Evaluation Center, wherein it was opined that the application should not be favorably considered because he failed to submit documentation to support his application.  It stated that the applicant had submitted documents that had been altered.

10.  Below is a side-by-side comparison of the applicant's record of promotion on two different DA Forms 2-1.  The component column is blank on the first form and as shown on the second.

applicant's copy

record copy 

grade
date
grade
date
SP4
790701
SP4           RA
790701
SGT
791207
PFC           RA
791207
PFC
791207
SP4           USAR
821004
SP4
790701
SGT--------USAR
850218
SGT
850218
SGT          USAR
850201
11.  Army Regulation 635-5-1 (Separation Program Designator Codes) provides the specific authorities and reasons for separating Soldiers from active duty and the SPD codes to be entered on the DD Form 214.  It states the SPD code of LBK is the appropriate code to assign to Soldiers separated for the expiration of their term of service.  The SPD/RE Code Cross Reference Table establishes 
RE-1 as the proper code to assign to members separated with this SPD code.

12.  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 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 never signed any NJP document and he was never reduced in rank.  He states his former first sergeant will verbally testify to these facts.

2.  The applicant's 3 May 1980 DD Form 214 includes an incorrect RE code entry of "3."  The correct RE code for a Soldier separated with an SPD of "LBK" is "1."  Therefore, it is appropriate correct this error.

3.  The applicant's statement that he never received an NJP is belied by the record copy of the 1979 DA Form 2627 which bears his signature in two locations.

4.  The 7 December 1979 NJP included both a forfeiture of pay and a suspended reduction from SP4 to PFC.  The suspension was vacated approximately a month after the NJP was accepted.  These facts are supported by the entries on his LES.

5.  There is no evidence to show that following the NJP action reducing him to PFC, he was again advanced to SP4, much less that he was promoted to SGT on the same day as the reduction to PFC.

6.  The validity of the information previously submitted by the applicant is highly questionable and the applicant failed to provide any corroborating evidence that would support his contention that he did not receive NJP, that he was not properly reduced to PFC on 7 December 1979, that any pay was improperly withheld, or that he was advanced to SP4 (much less to SGT) following his reduction and prior to his 3 May 1980 separation.  Therefore, no relief is warranted for these issues.

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 all Department of the Army records of the individual concerned be corrected by showing an RE code of "1" on the 3 May 1980 DD Form 214.

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 removing the 7 December 1979 NJP, restoring his rank, and refunding any pay withheld.



      __________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)                                         AR20100013142



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013142



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1