IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100013459 


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 the following corrections be made to his military records:

	a.  restoration to the rank and pay grade of private (PV2)/E-2 from the period 1 September 1978 to 21 September 1979,

	b.  refund of all pay forfeited as a result of his sentencing and reduction in grade,

	c.  promotion consideration to the grade of private first class (PFC)/E-3,

	d.  promotion consideration to the grade of specialist (SPC)/E-4 prior to his separation on 21 September 1979, and

	e.  payment of all due monies as a result of these corrections.

2.  He states that following the U.S. Army Court of Military Review decision to dismiss all charges, no action was taken to reinstate his rank or pay.  He contends that despite his DD Form 214 (Report of Separation from Active Duty) depicting his rank and pay grade as PV2/E-2 with an effective date of 13 December 1977, he did not wear the rank or receive any pay for PV2/E-2 after the charges were dismissed.  He also states he was never paid any back pay for the pay he forfeited as a result of the initial court-martial.

3.  He claims he expected his rank and pay-related issues to be resolved prior to his discharge on 21 September 1979; however, no action was ever taken to make these corrections.  He asserts he continually sought advice following his discharge from the Army, but he was told there was nothing that could be done to resolve the issue.  During a recent visit to a Department of Veterans Affairs Medical Center, he was advised to submit an application for correction of his military record.

4.  He provided copies of the following documentation:

* his DD Form 214
* the U.S. Army Court of Military Review, Memorandum Opinion, dated 18 July 1979
* his DA Form 2-1 (Personnel Qualification Record – Part II)

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.  His records show he enlisted in the Regular Army on 23 September 1976 in pay grade E-1 for a period of 3 years.  After completion of basic combat and advanced individual training he was awarded military occupational specialty (MOS) 72E (Telecommunications Center Operator).

3.  His record shows three counts of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) were imposed upon him between 30 September 1977 and 2 November 1977.  The charges included failing to go to his prescribed place of duty at the prescribed time, using disrespectful language to a superior commissioned officer and to a noncommissioned officer, and being absent without leave (AWOL).

4.  A copy of Special Court-Martial (SPCM) Order Number 26, Headquarters, 2nd Armored Division, dated 1 September 1978, shows he entered a plea of "not guilty" on 30 May 1978 and was charged with the following:

	a.  two specifications of violating Article 128 of the UCMJ for striking a Soldier in the face with his fist and striking another Soldier in the face with a half-gallon wine bottle, both infractions occurred on 14 April 1978;

	b.  one specification of violating Article 91 of the UCMJ on 5 May 1978 by having received a lawful order and willfully disobeying the same from his superior noncommissioned officer; and

	c.  one specification of violating Article 92 of the UCMJ on 5 May 1978 by failing to obey a lawful order from his superior noncommissioned officer.

5.  He was sentenced to be reduced to the grade of private (PVT)/E-1, to forfeit $265.00 pay per month for 6 months, to be confined at hard labor for 6 months, and a bad conduct discharge.

6.  The convening authority approved the sentence and ordered it executed on 1 September 1978.  The portion of the sentence pertaining to the bad conduct discharge was suspended for 3 months pending completion of the appellate review.

7.  A copy of SPCM Order Number 1174, U.S. Army Retraining Brigade, dated 24 October 1978, shows that effective 20 October 1978 the unexecuted portion of the sentence to confinement at hard labor for 6 months was suspended until 22 February 1979 pending the appellate review.  He was released from military confinement and reassigned to Fort Riley, KS, for training.

8.  A copy of SPCM Order Number 1530, U.S. Army Retraining Brigade, dated 13 December 1978, shows the unexecuted portion of the approved sentence to forfeiture of $265.00 pay per month for 3 [should read "6"] months was suspended until 22 February 1979 pending the appellate review.

9.  His DA Form 2-1 shows he was promoted to the grade of PV2/E-2 on 23 March 1977; reduced to the grade of PVT/E-1 on 30 September 1977; and again promoted to the grade of PVT/E-2 on 13 December 1977 in item 18 (Appointments and Reductions).  The next entry shows a reduction to the grade of PVT/E-1 on 1 September 1978; however, it is lined through.

10.  On 19 January 1979, he accepted NJP under Article 15 of the UCMJ for being AWOL from 4 to 5 January 1979.  His grade is shown on this form as PVT/E-1.

11.  The U.S. Army Court of Military Review made a determination that the convening authority failed to act on his case within 90 days of his conviction.  The case was not tested for prejudice due to the U.S. Government not meeting its heavy burden to show due diligence.  Accordingly, the findings of guilty and the sentence were set aside and the charges were dismissed.

12.  A copy of his DD Form 214 shows he was honorably discharged on 21 September 1979.  He completed 2 years, 11 months, and 28 days of total active service with 1 day of lost time due to AWOL.  This form indicates his rank and pay grade as PV2/E-2 effective 13 December 1977.  Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) does not show any awards or decorations.

13.  His record contains no evidence and he has not provided any to show he was not paid in the grade of PVT/E-2 or that all forfeited pay and the difference in pay between the grades of PVT/E-1 and PV2/E-2 for the period of the sentence was not restored.

14.  Army Regulation 600-200 (Enlisted Personnel Management System) in effect at that time provided specific guidance for the promotion and reduction of enlisted personnel in the grades E-1 through E-8.  Chapter 7 stated that promotion authority is delegated to the company commander for promotion of personnel in pay grades E-4 and below.

15.  The same chapter stated that a Soldier would not be promoted to PV2/E-2 or to a higher grade while AWOL, in confinement, or under court-martial charges, until such charges were dismissed or withdrawn or the individual had been tried and acquitted.  This rule also applied to those Soldiers serving a court-martial sentence under suspended sentence.

16.  Army Regulation 600-200 also provided pertinent information for promotion restrictions.  When an individual was not in a promotable status because he/she was serving under a suspended court-martial sentence and had been reduced to PVT/E-1, advancement to PV2/E-2 could be made on the date promotable status was regained.

17.  Army Regulation 600-200 stated the normal time in service criterion for promotion to E-3 was established as 12 months.  Normal time in grade criterion was 4 months.  Commanders could promote all eligible E-3's who had at least 24 months of time in service and who met all other criteria established:

* time in service – 24 months – waivable down to 15 months
* time in grade – 6 months as a PFC/E-3 – waivable down to 3 months
* promotable status – be in a promotable status (not under suspended court-martial charges) – nonwaivable
* proper pay grade – be serving in the pay grade next below that in which promotion is made – nonwaivable
* security clearance – must have an appropriate security clearance required for the MOS in which promotion is to be made

18.  The doctrine of laches is defined by Black's Law Dictionary, sixth edition, as the neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as a bar in a court of equity.

DISCUSSION AND CONCLUSIONS:

1.  His requests for restoration to the grade of PV2/E-2 with all due back pay, consideration for promotion to the grade of PFC/E-3, and possible consideration to the grade of SPC/E-4 were carefully considered.

2.  Due to the convening authority's untimely failure to act on his court-martial within 90 days of his conviction, the U.S. Army Court of Military Review dismissed all charges on 18 July 1979.

3.  His record shows he was confined from 30 May 1978 to 20 October 1978 for a total of 4 months and 21 days.  He was also reduced to the grade of PVT/E-1 and sentenced to forfeit $265.00 pay for 6 months.

4.  He contends that although his DD Form 214 reflects his grade as PV2/E-2, he did not wear this rank nor did he receive any pay for this grade.  His record contains no evidence and he has not submitted sufficient evidence to show he was not restored to the grade of PV2/E-2 with all due pay and allowances.  In the absence of evidence to the contrary, there is a presumption of regularity that the Army and the military pay system did, in fact, perform their duties as outlined in the U.S. Army Court of Military Review directive.

5.  His records show he entered active duty on 23 September 1976 and was promoted to the grade of PV2/E-2 for the second time on 13 December 1977.  In accordance with the applicable Army regulation and under normal time constraints for promotion to the grade of PFC/E-3, he would have been eligible for promotion to PFC effective 12 April 1978.  However, his commander in his discretion chose not to promote him to PFC.  As a result, he did not meet the criteria outlined for promotion to the next higher grade.

6.  In view of the foregoing, there appears to be no error or injustice in this case.  Therefore, there is no basis to grant 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 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)                                         AR20100013459



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ABCMR Record of Proceedings (cont)                                         AR20100013459



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