IN THE CASE OF:	  

		BOARD DATE:  6 September 2012

		DOCKET NUMBER:  AR20120003816 


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/grade to specialist four (SP4)/
E-4. 

2.  The applicant states, in effect, after he was released from the Correctional Training Facility his commander informed him that he had talked to officers at the Pentagon and he was asked by them to give him a message that stated they had made a mistake in sending him to prison and that he would be issued an honorable discharge.  It is logical to presume that if they made a mistake in sending him to prison, they also made a mistake by taking his rank. 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Special Court-Martial Orders Number 231

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's records show, on 7 February 1968, he was inducted into the Army of the United States and he held military occupational specialty 11B (Light Weapons Infantryman). 

3.  He served in Vietnam from on or about 19 February 1969 to 1 February 1970. While in Vietnam, he was honorably discharged on 14 August 1969 for the purpose of immediate enlistment in the Regular Army (RA).  He enlisted in the RA on 15 August 1969.

4.  Also while in Vietnam, Headquarters, 4th Infantry Division published:

* Special Orders Number 43, promoting him to private first class/E-3, effective 12 February 1969
* Special Orders Number 222, promoting him to SP4/E-4 effective 12 July 1969

5.  On 14 October 1970, he was convicted by a special court-martial of being absent without leave from 16 March to 8 September 1970.  The Court sentenced him to confinement at hard labor for 5 months, a forfeiture of $80.00 pay for 
5 months, and a reduction to private (PV1)/E-1.  The convening authority approved the sentence on 22 October 1970.

6.  On 27 January 1971, the unexecuted portion of the applicant's sentence pertaining to confinement at hard labor and a forfeiture of pay was ordered remitted.  

7.  On 24 February 1971, Headquarters, U.S. Army Correctional Training Facility, Fort Riley, KS, published Special Orders Number 36 ordering his discharge from the RA, effective 26 February 1971.  These orders listed his rank as a PV1.

8.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was reduced to PV1/E-1 by the authority of Special Court-Martial Orders Number 231, effective 22 October 1970.

9.  His service records do not contain official orders promoting him back to SP4/E-4.

10.  He was honorably released from active duty on 26 February 1971.  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 "22 Oct 70 (22 October 1970)"

11.  Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel.  Chapter 7 contained Army-wide promotion policy and procedures.  It stated, in pertinent part, that the promotion of enlisted personnel to grade E-5 through E-9, appointments, grade reductions, and grade restoration were announced in orders.  

12.  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 items 5a and 5b will show the active duty rank and pay grade at time of the Soldier's separation.  The rank is taken from the Soldier’s promotion/reduction orders and item 6 shows the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted by a special court-martial on 22 October 1970 and he was sentenced to reduction to PV1/E1.  There is no evidence in his records and he did not provide any evidence that shows a competent legal authority restored his rank or an appropriate promotion authority promoted him back to SP4/E-4.  His DA Form 20 shows the reduction to PV1/E-1 and his separation orders listed his rank as a PV1.  

2.  In the absence of documentary evidence confirming he was promoted or appointed back to the rank of SP4/E-4 there is insufficient evidence to grant him 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)                                         AR20120003816



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ABCMR Record of Proceedings (cont)                                         AR20120003816



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