BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110011355 


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 record to show his rank/grade as sergeant (SGT)/E-5 instead of specialist four (SP4)/E-4.

2.  The applicant states:

	a.  he lost his SGT rank due to an alcohol-related incident;

	b.  he decided he could do better and therefore continued to serve without having any additional incidents;

	c.  after several years, he enlisted in the U.S. Army Reserve (USAR) where he volunteered for and served in support of Operation Desert Shield/Desert Storm for 6 months;

	d.  he continued to serve his country, received multiple awards, performed in leadership positions, and he completed training and served in military occupational specialty (MOS) 92G (Cook) until he received his 20-Year letter (Notification of Eligibility for Retired Pay at Age 60).

3.  The applicant provides:

* Self-authored statement
* 20-Year Letter, dated 20 April 2000
* DD Form 214 (Certificate of Release or discharge from Active Duty) for the period ending 13 June 1991
* 
Undated memorandum, subject:  Enrollment in Phase I Course
* Active duty order
* 3 Certificates (Army Achievement Medal, Outstanding Dedicated Service, Honorable Discharge)
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 June 1998
* Released from active duty (REFRAD) order
* Memorandum for Record, subject:  Combat Loss of TA-50, dated 7 May 1991
* DA Form 2-1 (Personnel Qualification Record)

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's military record shows that after having prior inactive service, he initially enlisted in the Regular Army (RA) on 4 February 1974 in the rank/grade of private (PV1)/E-1.  He was trained in and awarded MOS 76Y (Unit Supply Specialist).

3.  His record shows he was advanced to the following ranks on the dates indicated:

RANK/GRADE
EFFECTIVE DATE/DATE OF RANK
private (PV2)/E-2
4 June 1974
private first class (PFC)/E-3
1 December 1974
SP4/E-4
1 May 1975
4.  On 14 November 1976, the applicant was honorably discharged in the rank/grade of SP4/E-4 for the purpose of immediate reenlistment.  The DD 
Form 214 he was issued at the time shows he completed 2 years, 9 months, and 
11 days of creditable active service.

5.  On 15 November 1976, the applicant reenlisted in the RA.

6.  Orders Number 247-41, issued by Headquarters, 197th Infantry Brigade, dated 29 December 1978, promoted the applicant to SGT/E-5 effective 1 January 1979, with a date of rank of 10 December 1978.

7.  On 22 August 1979, he was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 he was issued at the time shows he completed 2 years, 9 months, and 8 days of creditable active service during this period.

8.  On 23 August 1979, the applicant reenlisted in the RA.

9.  On 9 September 1980, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for:

	a.  operating a privately owned vehicle on 3 August 1980 while drunk and in a reckless manner by failing to yield the right of way causing an accident, and

	b.  failing to go to his appointed place of duty at the prescribed time on 1 September 1980.

10.  The punishment imposed was a reduction to SP4/E-4 (suspended until 3 March 1981) and forfeiture of $150.00 pay per month for two months.  His record contains no evidence to show the reduction to SP4 was ever effected.

11.  On 9 July 1982, the applicant accepted NJP under the provisions of
Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on five separate occasions (3, 28, 29, and 30 June and 1 July 1982) and for disobeying a lawful order.  The punishment imposed was a reduction to SP4/E-4.

12.  His DA Form 2-1 (Personnel Qualification Record) shows he was reduced from SGT/E-5 to SP4/E-4 on 9 July 1982.

13.  On 17 March 1983, the applicant was honorably discharged at the expiration of his term of service in the rank of SP4.  The DD Form 214 he was issued him at the time shows he completed 3 years, 6 months, and 25 days of net service during this period for a total of 9 years, 1 month, and 14 days of creditable active service.

14.  On 18 March 1983, he enlisted in the USAR and he continuously served through several reenlistment periods.

15.  On 15 January 1991, he was ordered to active duty in support of Operation Desert Shield/Desert Storm.  He was released from active duty on 13 June 1991, in the rank of Specialist (SPC)/E-4, and transferred to his unit in the USAR.

16.  His DA Form 2-1 shows he was awarded primary MOS 92G on 22 September 1999.  It also shows he earned the following awards during his military service:

* National Defense Service Medal
* Army Good Conduct Medal
* Army Service Ribbon
* Army Achievement Medal
* Marksman Marksmanship Qualification Badge with M-16 Rifle Bar

17.  On 20 April 2000, the U.S. Army Reserve Personnel Command, St. Louis, MO, notified the applicant of his eligibility for retired pay at age 60 (20-Year Letter).  This document shows the applicant's rank as "SPC" (specialist/E-4).

18.  Orders 00-159-033, issued by Headquarters, 99th Regional Support Command, Oakdale, PA, dated 7 June 2000, transferred the applicant to The Retired Reserve effective 24 May 2000 in the rank of SPC.

19.  There is no evidence the applicant was promoted to SGT subsequent to his reduction on 9 July 1982 and prior to the date he was transferred to the Retired Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SGT/E-5 on 10 December 1980.  However, on 9 July 1982, he accepted NJP under the provisions of Article 15 of the UCMJ for multiple offenses.  As a result, he was reduced to SP4/E-4.

2.  There is no evidence of record and he did not provide any evidence that shows he was promoted back to SGT subsequent to his reduction to SPC and prior to his transfer to the Retired Reserve.

3.  The evidence of record confirms, subsequent the applicant's reduction to E-4, he continued to serve on active duty and in the USAR without committing any 

additional infractions.  It also confirms he served in support of Operation Desert Shield/Desert Storm, received multiple awards, and retrained and reclassified into MOS 92G.  However, these accomplishments do not provide a basis for a restoration of his rank to SGT, but instead proves his ability to serve in accordance with the UCMJ as required and expected of him when he initiated his sworn oath upon each of his enlistment/reenlistment periods.

4.  Lacking any evidence to show he was promoted to SGT/E-5 subsequent his reduction to SPC/E-4, and that he held this rank upon his placement in the Retired Reserve, there is no basis for granting the applicant's 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 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)                                         AR20110011355



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ABCMR Record of Proceedings (cont)                                         AR20110011355



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