IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100018663 


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 of specialist (E-4).  He requests to be provided a legible copy of his DD Form 214 and DA Form 1577 (Authorization for Issuance of Awards).  He asks if he will be issued his awards.

2.  The applicant states:

* his discharge was corrected on 3 July 1999, but his rank was not reinstated
* his discharge was overturned; therefore, his reduction in rank should also have been overturned

3.  The applicant provides:

* DD Form 214
* an undated, self-authored letter addressed to the Army Review Boards Agency (ARBA)
* a letter from ARBA, dated 3 August 1999

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 request for copies of documents contained in his official military record does not require Board action.  He will be furnished copies of the requested documents.  With respect to receiving his awards, he should contact the Commander, U.S. Army Support Activity, Philadelphia, PA  19101-3460.  Therefore, there will be no further reference to this portion of his request in these proceedings.

3.  With 6 years, 8 months, and 6 days of total prior active service, the applicant reenlisted in the Regular Army on 17 June 1968 in pay grade E-4.

4.  On 10 July 1968, the applicant was convicted by a special court-martial of the following:

* assaulting a foreign national
* entering an off-limits establishment
* possessing a concealed weapon

5.  As part of his sentence he was reduced to pay grade E-1.

6.  On 18 April 1969, he was promoted to specialist four, E-4.

7.  The available records show he was serving in pay grade E-4 on 31 August 1971 when nonjudicial punishment was imposed against him for being absent without leave.  Part of his punishment was a reduction to pay grade E-3, which was suspended for 3 months.

8.  The facts and circumstances pertaining to the applicant's discharge are not on file.  The DD Form 214 he received shows he was discharged under other than honorable conditions on 9 November 1971 due to unfitness.  His DD Form 214 

shows he had 33 days of lost time and was discharged in the rank and pay grade of private (E-1).  His DD Form 214 shows his pay grade was effective 29 October 1971.

9.  On 3 December 1998, this Board upgraded the applicant's discharge to general under honorable conditions.  He received a new DD Form 214 that shows the character of his service as under honorable conditions (general).  However, the reason and authority for his discharge, as well as his rank and pay grade of private (E-1), remained unchanged.

10.  Army Regulation 600-200 (Enlisted Personnel Management System), then in effect, prescribed policies and procedures governing promotion and reduction of Army enlisted personnel.  It stated that when the separation authority determined a Soldier was to be discharged from the service under other than honorable conditions, that Soldier would be reduced to the lowest enlisted grade.

11.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  The regulation in effect at the time stated the rank and pay grade at the time of separation would be entered in item 5a (Grade, Rate or Rank) and item 5b (Pay Grade) of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention was noted and appears to have merit.

2.  In accordance with the applicable regulation, when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.  However, when the Board determined the type of discharge he received was unduly harsh and recommended the issuance of a general discharge, it negated the reason for his reduction.  The preponderance of the evidence indicates he had been reduced to the lowest enlisted grade as a result of being discharged under other than honorable conditions.

3.  The applicant had nonjudicial punishment imposed against him on 31 August 1971 and his punishment included a reduction to pay grade E-3.  However, the reduction was suspended.  Therefore, he should have been discharged in his then-current pay grade of E-4.

4.  In view of the foregoing, the applicant's records should be corrected as recommended below.


BOARD VOTE:

____	X___  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 for the period ending 9 November 1971 to show he was discharged in the rank and pay grade of specialist four (E-4) with an effective date of pay grade of 18 April 1969.




      _____________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)                                         AR20100018663





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ABCMR Record of Proceedings (cont)                                         AR20100018663



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