IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100019480 


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, in effect, correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his highest enlisted rank as sergeant (SGT)/pay grade E-5.

2.  The applicant states his reduction in rank from SGT to private (PV1)/E-1 was too drastic a consequence for his infraction, which he does not remember.  He states even though he had been reduced in rank, he was asked to reenlist for a drill sergeant position.  He also states he received an honorable discharge.

3.  The applicant did not provide any supporting documentation with his application. 

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 was inducted into the Army of the United States on 3 August 1968.  He completed the training requirements and he was awarded military occupational specialty 94B (Cook). 

3.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows the following grade sequence:

		Grade				Date of Rank			Authority
PVT/E-1 
2 August 1968
Army Regulation (AR) 601-270
PVT/E-2 
2 December 1968
AR 600-200, paragraph 7-19a
Specialist/E-4 
27 November 1968
Special Order Number 251, US Army Quartermaster School Brigade, Fort Lee VA
PVT/E-2
19 June 1969
Unit Order Number 36, Headquarters, 1st Battalion, 19th Artillery, Fort Carson CO
PVT/E-1
10 April 1970
Unit Order Number 35, Headquarters, 6th Field Artillery Battalion, Fort Carson CO 
PVT/E-2
1 June 1970
AR 600-200, paragraph 7-19s
	
4.  The applicant's records contain DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) that show nonjudicial punishment (NJP) was taken against the applicant on:

	a.  on 19 June 1969, for unknown offenses and his punishment consisted of reduction from pay grade E-3 to PVT/pay grade E-2, a forfeiture of $50 pay for 2 months, and 30 days of extra duty which he appealed.

		(1)  on 24 June 1969, a staff judge advocate reviewed the punishment imposed on 19 June 1969 and stated, "It is my opinion that the proceedings were conducted in accordance with (the) law and regulation and that the punishments imposed are neither unjust nor disproportionate to the offenses committed."

		(2)  on 25 June 1969, the appellant authority denied the applicant's appeal and approved the 19 June 1969 punishment and ordered it duly executed.

	b.  on 2 August 1969, for failure to go to his appointed place of duty at the time prescribed on 31 July 1969.  His punishment consisted of reduction from pay grade E-3 to PVT/pay grade E-2 and a forfeiture of $36 pay.
   
   c.  on 9 April 1970, for being absent without authority (AWOL) from 25 March to 3 April 1970.  His sentence consisted of reduction from pay grade E-2 to PVT/E-1 and a forfeiture of $37 pay for 2 months.  
5.  The applicant's personnel service records do not contain orders promoting him to the rank of SGT.

6.  Headquarters, 5th Infantry Division (Mechanized), Fort Carson Special Orders Number 219, dated 7 August 1970, show he was released from active duty and transferred to U.S. Army Reserve Control Group (Annual Training).  This order shows his rank was PV2/E-2.  

7.  He was issued a DD Form 214 dated 10 August 1970 that shows he completed 2 years of active federal service.  Item 5a (Grade, Rate, or Rank) shows "PVT" and item 5b (Pay Grade) shows "E-2."  His date of rank is shown as 23 April 1970.

8.  References:

	a.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  In addition, it provides that when a person is reduced in grade as a result of imposition of a NJP, the date of rank and the grade to which reduced is the date the punishment of reduction was imposed.  

	b.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation states that 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.  It requires the preparer to enter from the DA Form 20 the Soldier's active duty grade or rank and pay grade at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant was properly released from active duty on 10 August 1970 in the rank and pay grade of PV2/E-2.

2.  Records show the applicant was promoted to specialist/E-4 on 27 November 1968.  He was subsequently reduced as a result of NJP on 19 June 1969 and further reduced to PVT/E-1 on 10 April 1970 due to NJP.  Within 2 months, he was promoted to PV2/E-2 and he was released on 10 August 1970 in the rank of PV2/E-2.  

3.  His DD Form 214 shows his E-2 date of rank as 23 April 1970.  His DA Form 20 shows his date of rank for E-2 was 1 June 1970 and this is most likely the correct date; however, no action will be taken to change this date because it is the policy of the ABCMR not to make an applicant worse off.  Assigning him a later date of rank would make him worse off.

4.  In view of the foregoing, there is an insufficient basis to grant the applicant's request to change his DD Form 214 with a separation date of 10 August 1970 to show his rank as SGT/E-5.

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 that 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)                                         AR20100019480



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100019480



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1