IN THE CASE OF:
BOARD DATE: 24 April 2012
DOCKET NUMBER: AR20110021379
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 to specialist four (SP4)/E-4.
2. The applicant states he was reduced to private first class (PFC)/E-3 as a result of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) and to private (PV1)/E-1) based on his under other than honorable conditions (UOTHC) discharge. He believes the same issues that resulted in an upgrade of his discharge by the Army Discharge Review Board (ADRB) supports restoration of his rank to SP4/E-4.
3. The applicant provides an ADRB letter and Case Report and Directive 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 record shows, on 1 October 1985, the applicant enlisted in the Regular Army. He was trained in and awarded military occupational specialty (MOS) 11H (Heavy Anti-Armor Weapons Infantryman).
3. The applicants DA Form 2-1 (Personnel Qualification Record) shows he was advanced to the rank of SP4/E-4 on 1 July 1986 and this is the highest rank he attained while serving on active duty. It also shows he was reduced to PFC/E-3 for cause on 18 July 1991 and to PV1/E-1 on 10 December 1991.
4. The record shows the applicant served in Southwest Asia from 11 September 1990 through 7 April 1991, and that he earned the Combat Infantryman Badge, Southwest Asia Service Medal with 2 bronze service stars, Kuwait Liberation Medal (Saudi Arabia) and Kuwait Liberation Medal (Kuwait). The record also shows the applicant accrued 4 days of time lost due to two separate periods of being absent without leave (AWOL) between 17 July and 5 November 1991.
5. The record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. The ADRB Case Report and Directive shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ on 18 July 1991 and his punishment included a reduction to PFC/E-3. It also shows the record contained a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that identified the authority for his discharge as chapter 14, Army Regulation 635-200 (Personnel Separations) and the reason for separation as misconduct-pattern of misconduct. The DD Form 214 also confirmed the applicant received a UOTHC discharge and that on the date of discharge he held the rank of PV1/E-1, the grade he had been reduced to on 10 December 1991.
6. The ADRB Case Report and Directive shows the ADRB considered the applicants case on 9 November 2005 and found the applicants discharge was proper, but inequitable based on his overall record of service and current regulatory standards and upgraded it to honorable.
DISCUSSION AND CONCLUSIONS:
1. The applicants request to restore his rank to SP4/E-4 has been carefully considered based on the same issues that supported the upgrade of his discharge by the ADRB. However, there is insufficient evidence to support this request.
2. Although the Article 15 proceedings are not contained in the available record it is appears the applicants reduction to PFC/E-3 was the result of NJP action for an offense the commander believed supported that punishment. As a result, it would not be appropriate to ignore the misconduct that resulted in the reduction by restoring his rank to SP4/E-4.
3. Further, while the governing regulation requires reduction to the lowest enlisted grade in conjunction with receipt of a UOTHC discharge, given the applicants record is void of a separation packet, it cannot be established that his receipt of a UOTHC discharge was the basis for reduction to PV1/E-1.
4. Given the record is void of documents confirming the authority and reason for his reduction to PV1/E-1, there is an insufficient evidentiary basis to support restoration of any rank.
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) AR20110021379
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ABCMR Record of Proceedings (cont) AR20110021379
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