IN THE CASE OF:
BOARD DATE: 10 July 2012
DOCKET NUMBER: AR20120000035
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, a promotion to sergeant (SGT)/E-5.
2. The applicant states:
* He was demoted to private first class (PFC)/E-3 before he got his promotion to pay grade E-5
* He was court-martialed twice because of an Army error
* He had no representation
* For 2 years he was a specialist four (SP4)/E-4
* The Army lost his promotion orders
* He was treated unfairly in Panama
3. The applicant provides:
* DD Form 214 (Report of Separation from Active Duty) for the period ending 11 July 1975 (U.S. Navy)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 September 1982 (Regular Army)
* Orders 235-153, issued by Headquarters, 4th Infantry Division, Fort Carson, CO, dated 3 December 1980, as amended by Orders 029-170, issued by the same headquarters, dated 10 February 1981
* 3rd Infantry Division Certificate of Achievement, dated 28 April 1978
* Primary Noncommissioned Officer Course Diploma
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. Having prior service in the U.S. Navy, the applicant enlisted in the Regular Army on 8 December 1975 for a period of 3 years. He completed his training and he was awarded military occupational specialty 11C (indirect fire crewman). He was honorably discharged on 25 September 1977 for the purpose of immediate reenlistment. He reenlisted on 26 September 1977 for a period of
6 years.
3. Orders 235-153, dated 3 December 1980, show he was promoted to
SGT/E-5 effect the date of the orders with a date of rank of 12 May 1979.
4. On 25 August 1981, contrary to his plea, he was convicted by a special court-martial of being absent without leave (AWOL) from 29 March to 30 March 1981.
5. On 23 August 1982, contrary to his plea, he was convicted by a special court-martial of using provoking words. His sentence included a reduction from SGT/E-5 to PFC/E-3.
6. On 20 September 1982, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 13, for unsuitability (apathy, defective attitude or inability to expend effort constructively), with a general discharge.
7. Item 4a (Grade, Rate or Rank) of his DD Form 214 shows the entry "PFC." Item 4b (Pay Grade) shows the entry "E3."
8. Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) shows he was:
* appointed to E-4 with a date of rank of 27 June 1977
* promoted to E-5 with a date of rank of 12 May 1979
* reduced to E-3 with a date of rank of 23 August 1982
9. There is no evidence of record and he did not provide any evidence that shows he was re-promoted to SGT/E-5 after his reduction on 23 August 1982.
10. Army Regulation 635-5 (Personnel Separations - Separation 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 for item 4a and 4b, enter the active duty grade of rank and pay grade at time of separation.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record does not support the applicant's contention he was reduced to PFC/E-3 before he got his promotion to SGT/E-5. Evidence shows he was promoted to SGT/E-5 on 3 December 1980 and he was reduced to PFC/E-3 on 23 August 1982.
2. Although he contends he was court-martialed twice due to an Army error and he had no representation, there is no evidence of record and he did not provide any evidence to support these contentions.
3. His military record shows he was reduced from E-5 to E-3 on 23 August 1982. There is no evidence of record that shows he was again promoted to SGT/E-5 after 23 August 1982 or prior to his discharge on 20 September 1982.
4. In view of the foregoing, 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) AR20120000035
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