IN THE CASE OF:
BOARD DATE: 16 February 2012
DOCKET NUMBER: AR20110023829
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 reinstatement of his rank/grade to specialist four (SP4)/E-4.
2. The applicant states:
* He was reduced in rank/grade from SP4/E-4 to private (PVT)/E-1 prior to his discharge
* He was blamed for an incident in the barracks that involved drinking, fighting, and destruction of Government property
* While awaiting trial, he was put on house arrest and ordered to perform various extra duties
* He was ultimately allowed to be honorably discharged; however, his rank was taken away
* It has now been over 38 years since the incident and he feels the rank should now be restored
* He had trouble adjusting to life after his return from Vietnam
* He has been sober for over 20 years with no problems with the law
* He has raised a family and has been a law-abiding citizen
3. The applicant did not provide any 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 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 applicant enlisted in the Regular Army on 17 April 1970 and he held military occupational specialty 76V (Equipment Storage Specialist). He was promoted to private first class/E-3 on 26 August 1970 and SP4/E-4 on 22 September 1970.
3. He served in Vietnam from 17 April 1971 to 22 February 1972 and upon completion of his Vietnam tour, he was reassigned to Company B, Headquarters, Fort Huachuca, AZ.
4. On 18 May 1973, Headquarters, Fort Huachuca, AZ, published Special Orders Number 97 ordering his reduction to PVT/E-1 as a result of receiving nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).
5. He was honorably released from active duty on 18 May 1973 and he was transferred to the U.S. Army Reserve Control Group to complete his remaining obligation. He completed 3 years, 1 month, and 2 days of creditable active service. His DD Form 214 shows in:
* Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) the entries "PV1" and "E-1" respectively
* Item 6 (Date of Rank) shows the entry "17 May 1973"
6. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. It states, in pertinent part, that items 5a and 5b will show the active duty rank and pay grade at the time of the Soldier's separation; the rank is taken from the Soldiers promotion/reduction orders; and item 6 shows the date of rank.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ that led to his reduction to PVT/E-1 on 17 May 1973. There is no evidence that he was promoted or appointed above this rank/grade between the date of reduction and the date of separation from active duty.
2. The governing regulation provides that items 5a and 5b will show the active duty rank and pay grade at the time of the Soldier's separation; the rank is taken from the Soldiers promotion/reduction orders. The applicant's DD Form 214 correctly lists his rank and grade. There is neither an error nor an injustice.
3. The applicant's post-discharge achievements/accomplishments are noteworthy. However, post-service achievements and/or passage of time do not invalidate his reduction by a competent authority on 17 May 1973. He is not entitled to 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) AR20110023829
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ABCMR Record of Proceedings (cont) AR20110023829
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