IN THE CASE OF:
BOARD DATE: 14 August 2012
DOCKET NUMBER: AR20120004644
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, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank/grade as private first class (PFC)/E-3 instead of private (PV2)/E-2.
2. The applicant states his commanding officer at the time discharged him after an Article 15. This was done one week before the expiration of term of service and it was done without cause.
3. The applicant provides a Department of Veterans Affairs (VA) medical document.
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 in the rank/grade of private/E-1 on 23 November 1990. He completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewmember).
3. His records also show he was promoted to PV2/E-2 on 1 May 1991, PFC/E-3 on 23 November 1991, and specialist four (SP4)/E-4 on 24 January 1993.
4. He executed a reenlistment in the Regular Army on 31 March 1994. He was assigned to Fort Carson, CO.
5. On 9 September 1996, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty. His punishment consisted of a reduction to PFC/E-3, a forfeiture of pay, extra duty, and restriction.
6. On 20 February 1997, he again accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful toward his first sergeant. His punishment is not indicated on the Article 15; however, his record contains a DA Form 4187 (Personnel Action), dated 20 February 1997 ordering his reduction from PFC/E-3 to PV2/E-2, effective 20 February 1997.
7. On 13 March 1997, Headquarters, Fort Carson, CO, published Orders
072-0007 ordering his release from active duty effective 30 March 1997. The orders listed his rank as "PV2."
8. He was honorably released from active duty on 30 March 1997 by reason of completion of his required service. The DD Form 214 he was issued shows in:
* item 4a (Grade, Rate or Rank) "PV2"
* item 4b (Pay Grade) "E-2"
* item 12i (Effective Date of Pay Grade) "1997 02 20"
9. He submitted a VA medical document that listed his rank as PFC.
10. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders).
DISCUSSION AND CONCLUSIONS:
1. The applicant received NJP on 20 February 1997 that resulted in his reduction to PV2/E-2 on that date. There is no evidence in his records and he provides none to show he was promoted back to the rank/grade of PFC/E-3 between the date of his reduction and the date of his release from active duty.
2. The governing regulation provides for listing in items 4a and 4b the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders). His DD Form 214 correctly shows his rank/grade of PV2/E-2 and there is no reason to change either.
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.
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