IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110014657 


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 restoration of his rank/grade of staff sergeant (SSG)/E-6, the highest rank/grade in which he served on active duty vice sergeant (SGT)/E-5.

2.  The applicant states he found the error while applying for benefits and he would like to have his discharge properly reflect the highest grade that he held.  

3.  The applicant provides his 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 enlisted in the Regular Army (RA) on 3 January 1977.  He successfully completed training and held military occupational specialty 94B (Food Service Specialist).  

3.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1  covering his RA active duty service shows he was promoted to:

* private first class/E-3 on 1 May 1979
* specialist four (SP4)/E-4 on 1 November 1979
* specialist five/E-5 on 7 November 1981
* SSG/E-6 on 7 May 1985

4.  His record contains Headquarters, 7th Infantry Division and Fort Ord, Fort Ord, CA, Orders Number 106-343, dated 31 May 1985, which show the applicant was promoted to SSG with an effective date of 1 June 1985 and a date of rank of 7 May 1985.

5.  His record also contains Headquarters, 7th Infantry Division, Fort Ord, CA, Orders 183-310, dated 20 September 1985, which revoke Orders Number 
106-343 pertaining to the applicant's promotion.

6.  The applicant’s record contains DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which shows he was punished on 19 November 1984 under Article 15 of the UCMJ for failing to obey a lawful order on 1 November 1984 by driving on the Fort Ord installation while his driving privileges were suspended pending drunk driving charges on 
6 September 1984.  The applicant’s appeal was denied on 4 February 1985.  The punishment imposed was “reduction to the rank of SP4 suspended for a period of six months to be remitted if not vacated before 19 May 1985; forfeiture of $462.00 pay for a period of two months, one month suspended for a period of six months to be remitted if not vacated before 19 May 1985.”

7.  On 8 February 1985, the applicant received an Administrative Letter of Reprimand for operating a motor vehicle while under the influence of alcohol on  1 September 1984.

8.  On 9 September 1985, the applicant received an Administrative Letter of Reprimand for operating a motor vehicle while under the influence of alcohol on  9 January 1985.

9.  The applicant was honorably discharged from active duty on 17 February 1986 for expiration term of service.  Item 4a (Grade, Rate or Rank) of the         DD Form 214 he was issued at the time of his discharge shows “SGT.”  Item 4b (Pay Grade) of this form shows “E5.”

10.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him/her during his/her entire period of service.  Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist:

	a.  revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or

	b.  there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily.

11.  Under the provisions of Title 10, United States Code section 3964 (10 USC §3964), if you are an enlisted (E-1 through E-9) or warrant officer (W-1 through W-5) retiree with less than thirty years of active service who previously held a higher grade, you can apply for advancement to that higher grade on the retired list.  This applies to former members of the Regular Army, and reserve members of the Army who were serving on active duty at the time of regular retirement.  In the case of members of the National Guard, full-time National Guard duty is considered active duty.

12.  Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) prescribes policies, operating tasks, and steps governing the suspension of favorable personnel actions as a function.  It states that a flag will be initiated immediately when a Soldier’s status changes from favorable to unfavorable.  Several specific actions and investigations require a non-transferable flag.  In cases of adverse action, a flag is initiated if a member is pending elimination from the Army.  The flag is removed when the Soldier is reassigned to the transition center for separation.  A flag properly imposed in accordance with this regulation prohibits promotion or reevaluation for promotion.

13.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  It states that Soldiers (specialist through master sergeant) are non-promotable to a higher grade when a Soldier is in proceedings that may result in an administrative elimination.  The failure to initiate a DA Form 268 does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a flag under the provisions of Army Regulation 600-8-2.  A promotion is not valid and the promotion order will be revoked if the Soldier is not, or was not, in a promotable status on the effective date.  The unit commander must notify the promotion authority when a Soldier is in a non-promotable status.

14.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for the preparation of the DD Form 214.  In pertinent part, it stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  This regulation, in pertinent part, also stated the active duty rank and pay grade at the time of separation will be entered in Items 4a and 4b of the DD Form 214, respectively.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DD Form 214 should be corrected to show the highest rank/grade that he held at the time of discharge which was SSG/E-6 was carefully considered and determined to be without merit.

2.  The evidence of record shows he displayed a pattern of misconduct while assigned to Fort Ord, and received punishment under Article 15 of the UCMJ for failing to obey a lawful order on 1 November 1984 (which would have required the initiation of a flag).  In addition, he later received two separate letters of reprimand (which also would have required the initiation of a flag).  

3.  It is unclear if his chain of command initiated the appropriate flags to suspend any favorable personnel actions.  However, it is possible the paperwork may have been misplaced and never reached the Soldier’s record.  Nevertheless, the failure to initiate a DA Form 268 does not affect the Soldier’s non-promotable status if a circumstance exists that requires imposition of a flag.  In this case, a flag was required.  It is reasonable to presume, based on the punishment he received under Article 15 of the UCMJ, the applicant’s promotion was invalid;  therefore, his promotion was correctly revoked due to being in a non-promotable status on the effective date of promotion.  

4.  Army Regulation 635-5 states the active duty rank and pay grade at the time of separation will be entered in Items 4a and 4b of the DD Form 214, respectively.  The applicant’s record does not contain nor did the applicant provide any evidence which shows he was promoted to the rank/grade of  SSG/E-6 following the revocation of his promotion prior to his discharge from service.  Regardless, in view of the fact that the applicant was discharged from service vice retired from service, there is no regulatory provision to restore his rank to the highest rank that he held.  In view of the circumstances of this case, he is not entitled to any 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)                                         AR20110014657



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ABCMR Record of Proceedings (cont)                                         AR20110014657



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