IN THE CASE OF:	  

		BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110014593 


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 award of the Combat Action Badge (CAB) and restoration of his rank/grade to specialist four (SP4)/E-4.

2.  The applicant states he was in combat during the initial invasion of Iraq in 2003 and he attained the grade of E-4 prior to his disciplinary problems which led to his discharge.  He further states, he was a victim of an improvised explosive device (IED) while in Iraq and believes this was the root cause of his indiscipline.  He also states he has been receiving trauma therapy at the Louisville, Kentucky Veterans Administration Medical Center.   

3.  The applicant provides no additional evidence.

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.  With regard to the applicant’s request for award of the CAB.  The ABCMR operates under the procedures set forth in Army Regulation 15-185 which provide that the ABCMR will not consider any application until the applicant has first exhausted all other administrative remedies to correct the alleged error or injustice.  Requests for retroactive award of the CAB must be forwarded to the Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The applicant may request this award by letter.  All requests must contain:

* assignment, attachment, or operational control orders
* a copy of his Enlisted Record Brief or Personnel Qualification Record
* a copy of the chain of command endorsement
* a one-page narrative description of the qualifying incident
* a certified copy of his DD Form 214
* other supporting documentation 

3.  Since the applicant has not exhausted his administrative remedy with regard to this award, no further action can be taken at this time.  This does not mean this portion of his application has been denied by the ABCMR or that he may not file again.  Should his case not be satisfactorily resolved and he still feels an error or injustice exists, he may submit his application with evidence of the U.S. Army Human Resources Command's denial of his request.  A new DD Form 149 (Application for Correction of Military Records) is enclosed for the applicant in that event.  Based upon the above, the CAB will not be discussed further in this proceeding.

4.  The applicant enlisted in the Regular Army on 23 September 1998.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty 13D (Field Artillery Data Systems Specialist).  The applicant was advanced to E-4 on 1 June 2003 and that was the highest grade that he attained while serving on active duty.  However, at the time of separation the applicant held the rank/grade of private (PV1)/E-1.

5.  The applicant's record contains a DA Form 4430-R (Department of the Army Report of Result of Trial) which shows, on 10 December 2004, the applicant pled guilty and he was found guilty at a summary court-martial of wrongfully using cocaine, a controlled substance.  He was sentenced to a forfeiture of $795.00 pay for 1 month, reduction to the rank of PV1/E-1, and confinement for 30 days.  

6.  On 17 February 2005, the applicant’s unit commander notified him, in effect, that he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, misconduct, patterns of misconduct.  The unit commander informed the applicant that he was recommending that the applicant receive a characterization of service of general, under honorable conditions.  

7.  On 3 March 2005, the separation authority directed the applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct, patterns of misconduct.  The separation authority directed that the applicant be discharged from the military service with a general, under honorable conditions discharge.  The separation authority determined that the applicant had no potential for useful service under conditions of full mobilization and directed that he should not be transferred to the Individual Ready Reserve.

8.  On 21 March 2005, the applicant was honorably discharged from the Army.  His DD Form 214 (Certificate of Release or Discharge from Active Duty), Item 4a (Grade, Rate, or Rank) shows the entry PV1 and Item 4b (Pay Grade) shows the entry E-1.

9.  The applicant’s record does not contain nor did he provide any evidence which shows he was involved in an IED event while serving in Iraq.

10.  Article 112a (wrongful use, possession, etcetera, of controlled substances) of the Uniform Code of Military Justice (UCMJ) provides that any Soldier who wrongfully uses, possesses, manufactures, distributes, imports into the customs territory of the United States, exports from the United States, or introduces marijuana into an installation, vessel, vehicle, or aircraft used by or under the control of the Armed Forces shall be punished as a court-martial may direct.

11.  Army Regulation 27-10 (Military Justice) states that commanders may impose nonjudicial punishment for the administration of discipline under the provisions of Article 15 of the UCMJ.  Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15.  This regulation also stipulates that only one appeal is permissible under Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides that Soldiers may be reduced in rank and grade as a result of misconduct in violation of the UCMJ.  






DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he was discharged in the rank/grade of SP4/E-4 was carefully considered and determined to lack merit.

2.  The applicant was found guilty at trial by summary court-martial of wrongfully using cocaine, a controlled substance, which is in violation of Article 112a of the UCMJ and he was subsequently reduced in rank/grade as a result of this action.
There is neither an error nor an injustice in his court-martial proceedings.  Therefore, he is not entitled to restoration of his rank/grade to SP4/E-4.

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)                                         AR20110014593



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ABCMR Record of Proceedings (cont)                                         AR20110014593



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