DOCKET NUMBER:  AR20100027570 


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 (Armed Forces of the United States Report of transfer or Discharge) to show he held the rank/grade of private first class (PFC)/E-3 at the time of his release from active duty.

2.  The applicant states he thinks he should have been advanced to PFC/E-3 based on his overall record of service and because he was still performing duties in his military occupational specialty (MOS) for 17 days prior to reporting to the transfer point.  He also states he was reduced twice, the last time for entering a general officer’s quarters, which he did not do.

3.  The applicant provides no documentary evidence in support of 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 13 March 1968.  He was initially trained in and awarded MOS 36K (Wireman) on 12 July 1968, and he was later awarded MOS 91B (Medical Specialist) on 10 March 1969.

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist five (SP5)/E-5 on 23 September 1969, and that this is the highest rank/grade he attained while serving on active duty.

4.  On 24 February 1970, the unit commander initiated a bar to reenlistment on the applicant.  He stated the applicant was unfit for further enlistment and he had shown a lack of maturity and responsibility as shown by his disciplinary history, which included his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 9 December 1969, for reckless driving and leaving the scene of an accident, which resulted in his reduction to specialist four (SP4)/E-4, effective 11 December 1969; and a summary court-martial (SCM) conviction on 7 January 1970, based on his violation of Article 134 of the UCMJ by unlawfully entering the quarters of a major general, which the adjudged sentence included his reduction to private (PV1)/
E-1, effective 7 January 1970.  

5.  On 7 March 1970, the applicant was advanced back to private (PV2)/E-2.

6.  On 11 March 1970, the appropriate authority approved the applicant's bar to reenlistment.

7.  On 24 March 1970, the applicant was honorably released from active duty after completing 1 year, 11 months, and 24 days of total active service with
18 days of time lost due to confinement.  Items 5a (Grade, Rate or Rank) and
5b (Pay Grade) of the DD Form 214 he was issued at the time shows he held the rank/grade of PV2/E-2.  Item 15 (Reenlistment (RE) Code) shows he received an RE code of 3B, which indicates he was ineligible for enlistment based on having time lost (confinement), unless a waiver was granted.

8.  Army Regulation 600-200 (Enlisted Personnel Management), in effect at the time, prescribes the policies for the management of enlisted personnel.
Chapter 7 contained the enlisted promotion policy.  It stated unit commanders had the authority to advance Soldiers to PFC/E-3 if the member was otherwise qualified.  There was no automatic advancement criterion in effect for PFC/E-3.  They were based on the selection by the commander and announcement in official orders.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should have been advanced to PFC/E-3 prior to his separation has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The regulation in effect at the time granted the unit commander the discretionary authority to appoint enlisted members to PFC/E-3 if otherwise eligible.  There were no regulatory provisions requiring automatic advancements to PFC/E-3.

3.  The evidence of record confirms the applicant was reduced to PV1/E-1 as a result of a court-martial conviction on 7 January 1970 and he was advanced back to PV2/E-2 on 7 March 1970, prior to approval of his bar to reenlistment on
11 March 1970.  Clearly, based on his recommendation that the applicant be barred from reenlistment due to his unfitness for further enlistment, the unit commander did not believe the applicant was deserving of advancement to PFC/E-3 at the time.  Therefore, given it was within the unit commander’s discretionary authority to advance the applicant to PFC/E-3 or not, there is no apparent error or injustice related to the applicant’s grade at the time of his release from active duty.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100027570



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ABCMR Record of Proceedings (cont)                                         AR20100027570



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