IN THE CASE OF:
BOARD DATE: 24 January 2012
DOCKET NUMBER: AR20110012591
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 restoration of his rank and pay grade of corporal (CPL)/E-4.
2. He states that he was reduced from the rank of CPL to private first class (PFC) after receiving an Article 15 for no reason. He was the only returnee from Vietnam in the unit. The companys policy was that a Soldier would be given the day off on their birthday and he took the day off on his birthday. When he returned to the unit he was charged with being absent without leave (AWOL) and reduced in rank. He was promoted to CPL in Vietnam. He deserves to keep his rank because he fought for this country and earned all of his ranks.
3. He provides no additional 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military record shows he was inducted into the Army of the United States (AUS), in pay grade E-1, on 28 October 1965. He completed training and was awarded military occupational specialty 13A (Field Artillery Basic).
3. He was promoted to the rank of CPL (temporary), pay grade E-4, on 1 November 1966. He served in Vietnam from 28 May 1966 through 8 May 1967.
4. On 6 September 1967, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL from 2 to 5 September 1967. On 7 September 1967, he was reduced to PFC, pay
grade E-3, as a result.
5. He was honorably released from active duty (REFRAD), in pay grade E-3, on 27 October 1967, at the expiration of his term of service (ETS), and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). He was credited with completion of 1 year, 11 months, and 29 days of net active service and time lost on 5 September 1967.
6. Items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) on his DD Form 214 lists CPL and E-3. Item 6 (Date of Rank) lists 7 September 1967.
7. There is no evidence in his records to show he was again promoted to CPL, pay grade E-4, prior to his REFRAD.
8. He was discharged from the USAR, in the rank of PFC, pay grade E-3, on 27 October 1971.
9. He enlisted in the USAR in pay grade E-3 on 17 June 1977. He was promoted to rank of specialist four (SP4), pay grade E-4 on 11 January 1978. He reenlisted in the USAR, in pay grade E-4, on 20 May 1978.
10. On 12 December 1980, he was reduced from SP4 to PFC, effective 12 September 1980, for unsatisfactory participation. He was released from his Reserve unit and transferred to the USAR Control Group (Reinforcement). He was honorably discharged from the USAR, in pay grade E-3, on 19 May 1981.
11. There is no evidence in his records to show he was again promoted to pay grade E-4, prior to his discharge from the USAR.
12. Army Regulation 635-5 (Separation Documents), in effect at the time, provided instructions for the preparation of the DD Form 214. It stated that items 5a, 5b, and 6 would list the rank, pay grade, and effective date of pay grade for the current pay grade.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was inducted into the AUS on 25 October 1966 and was promoted to the rank of CPL (T) on 1 November 1966. As a result of NJP for being AWOL (a 4-day AWOL, not a 1-day AWOL) he was reduced to the rank of PFC on 7 September 1967. He was honorably REFRAD on 27 October 1967 for ETS. He was issued a DD Form 214 showing his rank and pay grade as PFC/E-3.
2. He enlisted in the USAR in pay grade E-3 on 17 June 1977 and was promoted to SP4, pay grade E-4, on 11 January 1978. He reenlisted in the USAR on 20 May 1978. He was reduced to PFC on 12 September 1980 for unsatisfactory participation. He was honorably discharged from the USAR in pay grade E-3 on 19 May 1981.
3. There is no evidence of record and he provided none to show he was again promoted to pay grade E-4 and served satisfactorily in that grade prior to his REFRAD on 27 October 1967 and discharge from the USAR on 19 May 1981.
4. After considering the evidence of record and his statements, he has not provided clear and convincing evidence that the punishments and reductions to pay grade E-3 was unjust, in whole, or in part, to support 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) AR20110012591
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