IN THE CASE OF:
BOARD DATE: 19 April 2011
DOCKET NUMBER: AR20100024491
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 reinstatement of his rank/pay grade of corporal (CPL)/E-4.
2. He states he is having problems getting into a veterans' hospital and his years as a Soldier don't count to his country and to family who has a history of military service.
3. He provides no additional evidence in support of his request.
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 1 September 1978. He reenlisted on 30 April 1981 and 3 October 1983.
3. His DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) he was:
* promoted to specialist four (SP4)/E-4 on 1 February 1980
* reduced to private first class/E-3 on 14 February 1982
* promoted to SP4/E-4 on 1 January 1983
* reduced to private (PV1)/E-1 on 10 July 1986
4. The record is void of documentation showing he held the rank of CPL/E-4.
5. On 10 July 1986, a proper separation authority approved a request for discharge for the good of the service, directed he receive an Under Other Than Honorable Conditions Discharge Certificate, and directed he be reduced to the lowest enlisted grade effective the date of his discharge as required by Army Regulation 600-200 (Enlisted Personnel Management System).
6. Orders 158-651, issued by Headquarters, Fort Carson and Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, on 23 July 1986 reduced him from SP4/E-4 to PV1/E-1 effective 10 July 1986.
7. The complete facts and circumstances of the applicant's discharge are not contained in the available records. However, his records contain a DD Form 214. The form shows he was discharged on 23 July 1986 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. The individual must certify in writing that he or she understands that he or she may receive a discharge under other than honorable conditions and the adverse nature and possible consequences of such a discharge.
9. Army Regulation 600-200, then in effect, stated when the separation authority determined that a Soldier was to be discharged from the service under other than honorable conditions, he or she would be reduced to the lowest enlisted grade.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record does not support the applicant's request for reinstatement of his rank/grade of CPL/E-4.
2. He was not promoted to CPL/E-4; however, he was promoted twice to
SP4/E-4.
3. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200. During the processing of his request, he would have been required to certify he understood he could receive a discharge under other than honorable conditions and the consequences of such a discharge, including reduction to PV1/E-1.
4. The separation authority approved his request and directed his discharge under other than honorable conditions. He was reduced to PV1/E-1 as required.
5. The evidence of record does not show and he has not provided evidence showing he was improperly reduced to PV1/E-1. In the absence of such evidence, 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) AR20100024491
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