IN THE CASE OF:	  

		BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20100028293 


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 that he was released from active duty (REFRAD) in the rank of captain (CPT).

2.  The applicant states he was unjustly discharged in the rank/grade of private (PV2)/E-2 instead of the rank of CPT because someone did not know what they were doing.  He goes on to state that he was given the rank of CPT as a top secret intelligence specialist for the Army and he earned every award the Army had to offer as "the Soldier," not just another Soldier, including several presidential awards.  He desires his records be corrected as he is reaching retirement age and it will affect his retirement.

3.  The applicant provides a two-page self-authored letter explaining his application and a copy of his DD Form 214.

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 born on 20 October 1952.  He enlisted in the Regular Army on 19 April 1978 in Phoenix, AZ for a period of 4 years with a moral waiver for drug use in Phoenix, AZ and training as a personnel management specialist.

3.  He completed his basic training at Fort Knox, KY and he was reassigned to Fort Benjamin Harrison, IN to undergo his advanced individual training (AIT).  Nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice was imposed against him on 15 August 1978 for failing to go at the time prescribed to his appointed place of duty.  He failed to complete his AIT and he was transferred to Fort Sill, Ok to undergo AIT as a Lance Missile Crewman. 

4.  On 20 October 1978, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty. 

5.  The applicant failed to complete that AIT course as well and he was then transferred to Fort Lee, VA where he underwent and completed AIT in military occupational specialty 76C (equipment records and parts specialist).

6.  He was transferred to Germany on 14 March 1979 for duty as an equipment records clerk in an artillery battery.

7.  On 8 November 1979, while serving in the pay grade of E-2, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty.

8.  On 18 December 1980, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty and being disrespectful in language towards a superior noncommissioned officer.

9.  He departed Germany on 11 March 1981 and he was transferred to Fort Sill, OK for duty as a Prescribed Load List clerk.

10.  On 9 June 1981, NJP was imposed against him for being derelict in the performance of his duties.


11.  On 24 July 1981, the applicant’s commander initiated a bar to reenlistment against him based on three records of NJP and his lack of dependability, motivation, and personal pride in his appearance and his job.

12.  On 18 April 1982, he was honorably REFRAD at the expiration of his term of service.   The applicant's DD Form 214, as corrected by a DD Form 215 (Correction to DD Form 214) dated 28 September 2000, shows he was REFRAD in the rank/grade of PV2/E-2, which was the highest rank/grade he attain while on active service.  He served 4 years of creditable active service.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows the:

* Army Service Ribbon
* Overseas Service Ribbon
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Grenade Bar

13.  His record does not contain any documentary evidence and the applicant did not provide any evidence that shows he was advanced/promoted past the rank/grade of pay grade of E-2 or that he was ever appointed as a commissioned officer.

14.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the
DD Form 214 will be prepared to reflect information that is in effect at the time the DD Form 214 is issued.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted and found to lack merit.  The applicant has failed to show through the evidence of record and the evidence submitted with his application that he ever served in the rank of CPT or that his rank was that of a CPT when he was REFRAD.  Accordingly, his DD Form 214 was properly prepared to reflect his rank/grade as PV2/E-2.

2.  In the absence of any evidence to support his contentions, there appears to be no basis to grant his request.






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)                                         AR20100028293



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ABCMR Record of Proceedings (cont)                                         AR20100028293



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