IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100028633 


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 to her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she retired in the rank/grade of staff sergeant (SSG)/E-6.  In addition, she requests adjustment of her retired pay to show her retired rank/grade as SSG/E-6

2.  The applicant states that when she retired, she was told her retired rank/grade would be sergeant (SGT)/E-5 and she is currently receiving retired pay as an SGT/E-5.  She states she received a field grade Article 15 under the Uniform Code of Military Justice (UCMJ) in November 1997 for disrespecting a warrant officer.  Her punishment consisted of a suspended reduction, forfeiture of pay, and 1 week of extra duty and this is her only known record of nonjudicial punishment (NJP).  She states she did not receive a conviction by a court-martial that would have reduced her in grade.  She also states she was accused of being absent without leave (AWOL) but she was on convalescent leave.  She concludes by stating she has attempted to correct her record in the past; however, her health conditions, family responsibilities, and her second career have hindered her abilities to proceed with her dispute.

3.  The applicant states she provided medical records with her application; however, there were no medical records attached to her application.  She did provide a copy of her DD Form 4 (Enlistment/Reenlistment Document of the Armed Forces of the United States), dated 2 June 1997; and orders transferring her from her unit to Headquarters, Fort Bliss, TX. 


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 7 March 1980.  She completed her initial entry training and she was awarded military occupational specialty 14E (Patriot Fire Control Operator).

3.  On 1 June 1983, Orders 127-12, issued by U.S. Army Regional Personnel Center Giessen, Germany, promoted the applicant to SGT/E-5 with a date of rank of 7 May 1983.

4.  The applicant was promoted to SSG/E-6 on 1 November 1992.

5.  The applicant's record maintained in the interactive Personnel Electronic Records Management System (iPERMS) shows she received the following two NJP actions under Article 15, UCMJ:

	a.  on 15 July 1997, by an officer in the rank of lieutenant colonel (LTC) serving as a battalion commander, for being disrespectful in language toward a warrant officer.  Her punishment consisted of reduction to SGT/E-5, forfeiture of $100.00 per month for one month, and extra duty for 45 days.  Her reduction was suspended, to be automatically remitted, if not vacated before 12 January "1997" (i.e., 1998).

	b.  on 20 October 1997, by a LTC serving as a battalion commander, for making a false official statement and indebtedness to two private businesses for services rendered.  Her punishment consisted of reduction to specialist
(SPC)/E-4, which was suspended to be automatically remitted, if not vacated by 18 November 1997.

6.  The applicant was released from active duty on 31 March 2000 and placed on the Retired List on 1 April 2000 by Orders 336-0003, issued by Headquarters, U.S. Army Defense Artillery Center, Fort Bliss, dated 2 December 1999.  These orders show her retired grade of rank as SGT with a current grade effective date of 15 July 1997.  She was issued a DD Form 214 that shows she completed
20 years and 18 days of creditable active service.  Item 4a (Grade, Rate, or Rank) shows she was separated in the rank of SGT and item 4b (Pay Grade) shows her pay grade as E-5.

7.  In support of her application, the applicant submitted a DD Form 4, dated 2 June 1997, that shows in item 8 (Agreements) that she was reenlisting in the U.S. Army this date for 2 years beginning in pay grade E-6.

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 a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

   b.  Army Regulation 27-10, paragraph 3-25a, provides that a commander may vacate any suspended punishment provided the punishment is of the type and amount the commander could impose and where the commander has determined that the Soldier has committed misconduct (amounting to an offense under the UCMJ) during the suspension period.  The commander is not bound by the formal rules of evidence before courts-martial and may consider any matter the commander reasonably believes to be relevant to the misconduct.  There is no appeal from a decision to vacate a suspension

   c.  Army Regulation 27-10, paragraph 3-19, provides that any commander is authorized to exercise the disciplinary powers conferred by Article 15.  The term "commander" means, a commissioned or warrant officer who, by virtue of their grade and assignment, exercises primary command authority over a military organization or prescribed territorial area, that under pertinent official directives is 


recognized as a command.  The authority to impose punishment that includes reduction in rank/grade can be done if the imposing command has the general authority to appoint to the grade from which reduced.  When a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced is the date the punishment of reduction was imposed.  If the reduction was suspended either on or after the punishment was imposed the offender's date of rank in the grade held before the punishment was imposed remains unchanged.  If a suspension of the reduction is vacated, the offender's date of rank in the grade to which reduced as a result of the vacation action is the date the punishment was originally imposed, regardless of the date the punishment was suspended or vacated.

   d.  Army Regulation 635-200 provides for the placement of enlisted Soldiers on the retired list.  Paragraph 12-3 of this regulation requires that the retirement of a Soldier be in the pay grade he or she holds on the date of retirement.

DISCUSSION AND CONCLUSIONS:

1.  Based on the evidence of record, the applicant was properly released from active duty on 31 March 2000 in the rank and grade of SGT/E-5 and she was placed on the Retired List the following day in the rank/grade of SGT/E-5.

2.  After reenlisting on 2 July 1997 in the rank/grade of SSG/E-6, the applicant accepted a field grade Article 15 on 15 July 1997.  Part of her punishment included a reduction to SGT/E-5.  This punishment was suspended, to be automatically remitted, if not vacated before 12 January "1997" (i.e., 1998).  On
20 October 1997, she accepted a second field grade Article 15.  This second field grade Article 15 caused vacation of the suspended portion of her first field grade Article 15, specifically the reduction to SGT/E-5.  As prescribed by regulatory guidance, when her suspended reduction was vacated, her new rank/grade was SGT/E-5 with a date of rank of 15 July 1997.  This is the date the first Field Grade Article 15 was imposed.  Therefore, her DD Form 214 and retirement orders properly reflect her rank/grade as SGT/E-5 with a date of rank of 15 July 1997.

3.  In view of the foregoing, there is an insufficient basis to grant the applicant's request to change her DD Form 214 and retirement orders to show her rank/grade as SSG/E-6.


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)                                         AR20100028633



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ABCMR Record of Proceedings (cont)                                         AR20100028633



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