IN THE CASE OF:	  

		BOARD DATE:  20 March 2012

		DOCKET NUMBER:  AR20110019084 


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 reconsideration of his previous request that his undesirable discharge be upgraded to general.  He also requests, in effect, correction of his DD Form 214 (Report of Separation from Active Duty) to show his rank and grade as private first class (PFC)/E-3 and his military occupational specialty (MOS) as 76Y (Unit Supply Specialist).  

2.  The applicant states his rights were violated because he was sent to Alaska as an 11B (Infantryman) when was really a 76Y.  He contends that he signed a guaranteed contract for 76Y and OJT (on the job training) in heavy equipment.  He attended the supply clerk school and earned a Unity Supply Clerk Certificate and did not know his MOS had been changed until his arrival in Alaska.  

3.  The applicant provides a DD Form 214, discharge orders, and a copy of his military identification card.

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 is requesting reconsideration of his previous request that his undesirable discharge be upgraded to general.  His original request was not favorably considered by the ABCMR on 21 May 2009.  This request was received on 22 September 2011.  

3.  Army Regulation 15-185 sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within one year of the original decision and it has not previously been reconsidered.  The staff of the ABCMR reviewed the applicant's request for reconsideration and determined that the request was not received within one year of the ABCMR's original decision.  Therefore, his request for reconsideration does not meet the criteria outlined above and as a result, it will not be discussed further in this Record of Proceedings.

4.  His complete military records, including his enlistment contract, are not available for review.  However, there are sufficient documents available to conduct a fair and impartial review of this case.

5.  His DD Form 214 shows he entered active duty on 27 March 1974.

6.  His partially maintained or reconstructed DA Form 2-1 (Personnel Qualification Record) shows his MOS as 11B.  It also shows that he was absent without leave (AWOL) during the period 27 February - 18 April 1976.

7.  Evidence shows that after court-martial charges were preferred against him for the AWOL offense, he consulted with legal counsel and requested discharge for the good of the service in lieu of trial by court-martial.

8.  On 13 May 1976, the separation authority approved his request for discharge and directed his reduction to the rank and grade to private/E-1.

9.  Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, Special Orders Number 139, dated 18 May 1976, directed his discharge effective 19 May 1976.  These orders show his rank as private/E-1 and his MOS as 11B.

10.  On 19 May 1976, he was discharged accordingly.  His DD Form 214 shows he was separated in the rank and grade of private/E-1 with his service characterized as under other than honorable conditions.  His DD Form 214 also shows his MOS as 11B.

11.  He provided a copy of his military identification card that shows his rank as PFC.

12.  Army Regulation 635-200 (Personnel Separations) provides that when a Soldier is discharge with the service characterized as under other than honorable conditions, the separation authority will direct his/her immediate reduction to the lowest enlisted pay grade.

13.  Army Regulation 635-5 (Separations Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his rights were violated and that his DD Form 214 should be corrected to show his rank as PFC and his MOS as 11B has been carefully reviewed.

2.  The available evidence shows that his request for discharge was approved on 13 May 1976 and that the separation authority directed his reduction to the rank and grade of private/E-1.  Additionally, there is no evidence in his military records, and he provided none, that substantiates his claim of rights violations or that he held MOS 76Y.

3.  The applicant has failed to provide evidence showing that his DD Form 214 is incorrect.  As a result, there is no basis to grant the 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)                                         AR20110019084



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ABCMR Record of Proceedings (cont)                                         AR20110019084



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