IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100017231 


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 (Certificate of Release or Discharge from Active Duty) to show he was discharged in the rank/grade of specialist (SPC)/E-4 instead of private (PV2)/E-2.

2.  The applicant states he was 5 days from discharge and he was told it would be an honorable discharge.  He believed a 20-year old was 21 when they shared drinks.

3.  The applicant provided no additional evidence.

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's records show he enlisted in the Regular Army on 11 February 2004 in the rank/grade of private/E-1 and held military occupational specialty 11B (Infantryman).  On 11 June 2004, he was assigned to the 1st Battalion, 41st Infantry Regiment, Fort Riley, KS.

3.  His record shows he was promoted as follows:

* PV2/E-2 – 11 August 2004
* private first class/E-3 – 11 February 2005
* SPC/E-4 – 1 September 2005

4.  On 22 March 2007, he pled guilty at a summary court-martial to one charge of wrongful communication of a threat and two charges of wrongfully providing alcoholic beverages to a minor.

5.  He was found guilty on both charges and he was sentenced to reduction in rank/grade to PV2/E-2, forfeiture of pay of $729.00, 45 days of restriction, and 45 days of extra duty.  He was reduced to PV2/E-2 effective 22 March 2007.

6.  On 2 May 2007, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for commission of a serious offense.

7.  On 2 May 2007, he acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army, the effect on future enlistment in the Army, that he may expect to encounter substantial prejudice in civilian life if his service was characterized as general under honorable conditions, and of the procedures and rights that were available to him.

8.  On 7 May 2007, his chain of command recommended him for discharge under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense and recommended his service be characterized as general under honorable conditions.

9.  On 15 May 2007, the separation authority approved his discharge under Army Regulation 635-200, paragraph 4-12c, for commission or a serious offense and directed his service be characterized as general under honorable conditions.  On 24 May 2007, he was discharged accordingly.

10.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, with a general under honorable conditions discharge.  Item 4a (Grade, Rate or Rank) of this form shows "PV2" and item 4b (Pay Grade) shows "E-2."  He completed a total of 3 years, 3 months, and 14 days of creditable active service with no lost time.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 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, and convictions by civil authorities.  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 appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

12.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also states that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The active duty grade or rank and pay grade at the time of separation is entered in items 4a and 4b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show his rank at the time of discharge as SPC instead of PV2.

2.  The evidence of record confirms the applicant was reduced from the rank of SPC to the rank of PV2 on 22 March 2007.  He demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the summary court-martial he received and his reduction in rank as a result of his court-martial conviction.  Accordingly, his immediate commander initiated separation action against him.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  The applicant's DD Form 214 correctly reflects his rank at the time of discharge as PV2.  Therefore, there is no basis for granting 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)                                         AR20100017231



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ABCMR Record of Proceedings (cont)                                         AR20100017231



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