BOARD DATE:	  4 September 2012

		DOCKET NUMBER:  AR20120003446 


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, his reduction in rank and separation be overturned.

2.  The applicant states that block 6 (Date of Rank) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was reduced in rank on 8 March 1971.  He contends he was on an unauthorized absence (absent without leave - AWOL) on that date.  He was AWOL from 
5 March 1971 to 20 May 1971; therefore, he was not given the opportunity to defend himself at an Article 15 hearing, request a court-martial, or ask for help with his "Vietnam Syndrome," more commonly referred to as post-traumatic stress disorder (PTSD).  He was subsequently discharged on 21 May 1971.

3.  The applicant provides a copy of his DD Form 214.

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.  On 15 October 1997, the ABCMR considered and denied the applicant's earlier request to upgrade his discharge from undesirable to honorable. In his application he contended his misconduct was due to a mental condition, PTSD, and substance abuse.  The Board determined his administrative separation was accomplished in compliance with applicable regulations.  Further, they found the type of discharge directed and the reasons were appropriate considering all the facts of the case.

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 ABCMR's original decision and it has not previously been reconsidered.  The ABCMR will not consider any further requests for reconsideration on the matter of his discharge; therefore, only the portion of his request related to his reduction will be considered in these proceedings.

4.  His record shows he enlisted in the Regular Army on 12 November 1968.  

5.  The complete facts and circumstances leading to his reduction are not available for review.  His record contains a DA Form 20 (Enlisted Qualification Record) which shows in item 33 (Appointments and Reductions) he was reduced from private first class (PFC/E-3) to private (PV1/E-1) effective 8 March 1971.  The authority for his reduction is cited as Special Court-Martial (SPCM) Order Number 48, issued by Headquarters, 214 Artillery Group, Fort Sill, OK.

6.  SPCM Order Number 48 was not found in his record; however, his DA Form 20B (Record of Court-Martial Conviction) shows he was convicted by an SPCM of one specification of being AWOL from 14 January 1971 to 4 February 1971.  His sentence included being confined to hard labor for 95 days and forfeiture of $45.00 per month for four months. The date of his arraignment and trial are not part of the record.  However, his sentence was adjudged on 3 March 1971 and approved on 8 March 1971.

7.  He was discharged on 21 May 1971 under the provisions of Army Regulation 
635-212 (Personnel Separations - Discharge Unfitness and Unsuitability), SPN (Separation Code) 386 - Unfitness.  He received an "under conditions other than honorable" characterization of service and an undesirable discharge certificate.



8.  Item 26a (Non-Pay Periods Time Lost) of his DD Form 214 shows the following periods of lost time:

* 8 September 1970 to 4 October 1970
* 14 January 1971 to 3 February 1971
* 5 March 1971 to 20 May 1971

9.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, established promotion policies relating to the advancement, promotion, appointment, and reduction of all enlisted personnel on active duty.  Section XII of this regulation stated that an individual could be reduced for misconduct by an operation of law.  As a general rule a court-martial sentence of an enlisted member which, as approved by the convening authority, includes a punitive discharge, confinement, or hard labor without confinement, accomplishes a reduction to the lowest enlisted pay grade effective on date of approval by the convening authority (Article 58a, UCMJ).

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests, in effect, his reduction in rank be overturned.

2.  The applicant contends he was not afforded his due process in regard to his reduction because he was AWOL at the time and not given the opportunity to defend himself.  The complete record of trial was not available for review, but it is reasonable to presume that the applicant was present for his arraignment and trial.   It can be further presumed that he was represented by counsel, entered a plea, and presented a defense.  The evidence shows he was found guilty of being AWOL for the period 14 January 1971 through 4 February 1971 and sentenced to confinement at hard labor and forfeiture of pay.  His sentence was approved on 8 March 1971 and because his sentence included confinement at hard labor he was reduced to PV1/E-1 as a general rule on the same day.  

3.  His duty status on the day of his reduction is immaterial because his reduction was the result of his court-martial conviction in which it must be presumed that he was present.  Lacking evidence to the contrary, his reduction was accomplished in accordance with applicable law and regulations and without an error or injustice.

4.  In view of the above, his request should be denied.



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)                                         AR20120003446





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120003446



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1