IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110019900 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show:

* his rank/grade as specialist four (SP4)/E-4
* award of the Noncommissioned Officer Professional (NCO) Development Ribbon with Numeral 2

2.  The applicant states:

* his discharge papers, when his medical review board was conducted, listed his rank/grade as SP4/E-4
* when he returned from Fort Irwin, CA, with his unit, Headquarters and Headquarters Company (HHC), 1st Battalion, 50th Infantry Regiment, 2nd Armored Division, Fort Hood, TX, his company commander awarded him the NCO Professional Development Ribbon
* he attended the Basic NCO Course (BNCOC) at his unit during April and May of 1981

3.  The applicant provides a self-authored statement.

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 on 28 June 1978.  He attended one station unit training at Fort Gordon, GA, and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).  He was promoted to SP4/E-4 on 1 June 1980.

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned or attached to/from:

* HHC, 2nd Brigade, 2nd Armored Division, Fort Hood, TX, from 20 November 1978 to 27 October 1981
* HHC, 1st Battalion, 50th Infantry Regiment, 2nd Armored Division, Fort Hood, TX, from 28 October 1981 to 25 November 1982
* Medical Hold Company, Brooke Army Medical Center (BAMC), Fort Sam Houston, TX, from 26 November 1982 to 21 March 1984

4.  There is no evidence in his record to show he attended or graduated from the Primary Leadership Development Course (PLDC) or BNCOC.  Additionally there is no record he received the NCO Professional Development Ribbon or the NCO Professional Development Ribbon with numeral 2.

5.  His records contain an extensive history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ):  

	a.  on 29 June 1981, for threatening an NCO and using provoking language towards that same NCO.  His punishment consisted of 14 days of extra duty and restriction, forfeiture of $180.00, and reduction in rank/grade from SP4/E-4 to private first class (PFC)/E-3 (suspended for 60 days);

	b.  on 17 August 1981, the 60-day suspension of the punishment of reduction to E-3 was ordered vacated and the unexecuted portion of the punishment was ordered executed; 

	c.  on 31 March 1982, for failing to report to his place of duty.  His punishment consisted of forfeiture of 4 days of pay ($94.00) suspended for two months and 14 days of extra duty; 

	d.  on 19 July 1983, for writing three bad checks for cash in the amount of $50.00 each for a total of $150.00, disobeying a direct order from an NCO, and disobeying a command from a senior commissioned officer.  His punishment consisted of reduction in rank/grade from PFC/E-3 to private (PV2)/E-2 and 30 days of extra duty; and

	e.  on 8 September 1983, for leaving his place of duty without authority on two occasions and writing six bad checks for the total amount of $434.57.  His punishment consisted of reduction in rank/grade from PV2/E-2 to private (PVT)/E-1.

6.  His record shows, on 5 August 1982, he was in his car traveling on a northbound highway at a high rate of speed.  He ran off the roadway on the right and then veered back to the left crossing the northbound lanes and turning over in the median.  He was allegedly thrown from the vehicle.  He suffered abrasions, head trauma, a broken rib, and a compression fracture to his T9 vertebra.  

7.  His records also show the police report and the report from McKenna Memorial Hospital stated he was under the influence of alcohol and the smell of alcohol was present on his breath; however, no blood test was made to substantiate this claim.

8.  His records contain a Standard Form 502 (Medical Record-Narrative Summary (Clinical Resume)), dated 2 June 1983.  The disposition stated he did not meet retention medical fitness standards and recommended a physical evaluation board (PEB).  His diagnosis consisted of:

* Compression fracture of T-9 vertebra, greater than 50 percent stable
* Gonorrhea, treated, resolved
* Positive Fluorescent Treponemal Antibody (FTA), chronic, treated
* Hyperventilation Syndrome, resolved 
* Antisocial personality trait, with reactive depression
* Closed head injury, secondary to motor vehicle accident, resolved

9.  His records contain a DA Form 3947 (Medical Board Proceedings), dated 
2 June 1983.  The medical board determined his primary medical conditions were the compression fracture of his T-9 vertebra which caused him back pain and personality problems.  
10.  The DA Form 3947 further shows the applicant did not wish to continue on active duty and that he was not medically qualified for continuance on active duty.  The medical review board referred him to a PEB.

11.  His records contain a DA Form 199 (PEB Proceedings), dated 28 June 1983.  This form shows the PEB recommended a 10 percent disability rating for the compression fracture of his T-9 vertebra with characteristic pain on motion and rated it as a moderate limitation of motion.  The PEB stated he was unfit to perform duties the duties of a PFC in MOS 36K due to back pain.  The PEB recommended he be separated from military service with severance pay.  The PEB also stated:

* in the absence of an approved line of duty (LOD) report concerning his physical disability the case was processed as if a favorable LOD determination had been made
* however, should an unfavorable LOD determination result, he would be ineligible for entitlements under the Army Physical Disability Evaluation System

12.  His records contain a DD Form 261 (Report of Investigation - LOD and Misconduct), dated 12 September 1983.  This form shows that the car accident causing his injuries was found to be in the LOD.

13.  On 13 March 1984, his records went before the Army AD HOC Review Board for a grade determination.  The board determined that he did not perform satisfactorily at the highest grade held (E-4).  The board directed that the applicant be separated and receive severance pay in the rank/grade of PFC/E-3.

14.  On 19 March 1984, he received a letter from the U.S. Army Military Personnel Center, Alexandria, VA, which stated, "Reference your separation from active duty in the grade of PVT/E-1.  As a result of a review of your case by the Army AD HOC Review Board, it has been determined that you are entitled to severance pay in the grade of PFC."

15.  His service record is void of the separation orders; however, he was honorably discharged on 21 March 1984.  His DD Form 214 shows he was discharged in the rank/grade of PVT/E-1.  This narrative reason for separation shows he was discharged for a physical disability and that he received severance pay.

16.  Army Regulation 600-8-22 (Military Awards), paragraph 5-6 (NCO Professional Development Ribbon) states the NCO Professional Development Ribbon (NPDR) was established by the Secretary of the Army on 10 April 1981.  It is awarded to members of Active Army, ARNG, and USAR Soldiers for successful completion of designated NCO professional development courses.  Soldiers must successfully complete one or more of NCO courses to receive the NPDR.  Acceptable evidence of graduation is a diploma, certificate, or a letter signed by an appropriate service school official.  Effective August 1981 all Active Army, Army National Guard, and Army Reserve soldiers in an active status are eligible for this award for satisfactory completion of the respective noncommissioned officer education system (NCOES) or RC-NCOES courses as follows:

	a.  Primary level-Primary: NCO Course, Combat Arms (PNCOC), Primary-Leadership Course. (PLC), Primary Technical: Courses (Service School-PTC), and PLDC for award of the basic ribbon; and 

	b.  Basic level-Basic NCO Course, Combat Arms (BNCOC), Basic Technical Courses (Service School-BTC), and Basic NCO Course (Combat Support/Combat Service Support-BNCOC) for award of numeral 2.

17.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) states in:

	a.  paragraph 2-5. (Unsatisfactory Service) service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was expressly for prejudice or cause, owing to misconduct, caused by nonjudicial punishment pursuant to UCMJ, Article 15, or the result of the sentence of a court-martial; 

	b.  paragraph 2-6 (Service in lower grade) if service in the highest grade held was unsatisfactory, the Soldier can be deemed to have served satisfactorily in the next lower grade actually held, unless paragraph 2-5 applies; and 

	c.  paragraph 3-1 (General), for enlisted cases, the AGDRB will make final determinations on behalf of the Secretary of the Army.  It will determine the highest grade in which a Soldier has served satisfactorily for purposes of service/physical disability retirement, computation of retired pay (10 USC 1406 or 1407), or separation for physical disability.  While enlisted Soldiers may be reduced in grade by courts-martial, nonjudicial punishment proceedings (UCMJ, Art. 15), administrative separation proceedings, or inefficiency boards, enlisted grade determinations cannot result in reduction of an enlisted Soldier's or retiree's current grade.  Enlisted grade determinations will result in either a decision to retain the individual's current grade or to advance to a higher grade in which the individual satisfactorily served.  One specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade. However, service retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade. 

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in the applicant's record to show he attended PLDC or BNCOC.  By Army regulation, successful completion of PLDC is a prerequisite for the NCO Professional Development Ribbon.  As there is no record he completed either course, he is not entitled to the NCO Professional Development Ribbon or the ribbon with a numeral 2.

2.  The applicant argues that his DD Form 214 should be corrected to show his grade as E-4; however, he had an extensive history of NJP under the provisions of Article 15 which show he was reduced from SPC to PFC, from PFC to PV2, and from PV2 to PVT.  It is clear based on his record that he did not serve successfully above the rank/grade of PVT/E-1.

3.  The governing Army regulation states service in the highest grade or an intermediate grade will be considered to have been unsatisfactory when reversion to a lower grade was expressly for cause, owing to misconduct, or caused by nonjudicial punishment pursuant to UCMJ, Article 15.  Each of his reduction was the result of punishment received under the provisions of Article 15 of the UCMJ.

4.  Evidence shows his record went before a grade determination board.  The board found that he was entitled to severance pay in the grade of PFC upon separation. 

5.  Entitlement to a grade and entitlement to pay are not the same thing.  The board did not address the grade/rank to be reflected on his DD Form 214.  The board did not overturn the punishment he received under Article 15 of the UCMJ (reduction to E-1).  The board specifically addressed his grade for the purpose of severance pay only.

6.  Since his record is void of separation orders, regularity of the Army is presumed in this case, and it is concluded that his DD Form 214 was properly constituted and he received severance pay in the grade of PFC.

7.  In view of the forgoing, there is an insufficient evidentiary 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)                                         AR20110019900





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ABCMR Record of Proceedings (cont)                                         AR20110019900



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