IN THE CASE OF:
BOARD DATE: 16 October 2012
DOCKET NUMBER: AR20120006034
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 correction of the rank/pay grade that is shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
2. The applicant states that just prior to separation he received an Article 15 that reduced him from specialist four (SP4)/pay grade E-4 to private first class (PFC)/pay grade E-3, but the reduction action was suspended for 30 days. However, his DD Form 214 shows his rank/pay grade as PFC/E3.
3. The applicant provides a copy of his DD Form 214 in support of his request.
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 enlisted in the Regular Army (RA) on 26 May 1970. He was awarded military occupational specialty 76T (Repair Parts Specialist).
3. Headquarters, Fort George G. Meade, Maryland, Special Orders Number 59, dated 24 March 1972, promoted the applicant to the rank of SP4/E-4 effective
13 March 1972.
4. A DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 10 July 1972, shows the applicant received nonjudicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty on 5 July 1972. His punishment was a forfeiture of $30.00 pay for 1 month, and reduction from SP4/E-4 to PFC/E-3, suspended for 60 days.
5. Headquarters, Fort Meade, Maryland, Special Orders Number 228, dated
24 November 1972, paragraph 108, reduced the applicant from SP4/E-4 to PFC/E-3 effective 13 November 1972. The authority was UCMJ, Article 15 and Army Regulation 27-10 (Military Justice); the reason was misconduct.
6. The available evidence shows in January 1973 the applicant's commander recommended that the applicant be barred from reenlistment. He based his request on an:
a. Article 15 for violation of Article 86, UCMJ, on 5 July 1972; the punishment was a forfeiture of $30.00 for 1 month and reduction from SP4/E-4 to PFC/E-3 suspended for 60 days.
b. Article 15 for violation of Article 86, UCMJ, on 16 October 1972; the punishment was reduction from SP4/E-4 to PFC/E-3.
7. The applicant indicated that he desired to contest the action and he was given 30 days to reply, but he failed to do so. The bar to reenlistment was approved on
1 March 1973.
8. On 7 March 1973, the applicant requested early release from active duty for his own convenience. The applicant's signature block on this request shows the rank of "PFC." The separation authority approved this request on 13 March 1973.
9. The applicant's DD Form 214 shows his rank as "PFC", pay grade as "E-3," and a DOR of "13 Nov 72."
10. The applicant's military personnel records do not contain any evidence that shows he was promoted to SP4/E-4 subsequent to 13 November 1972.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his DD Form 214 should be corrected to show he was separated from active duty in the rank and pay grade of SP4/E-4 because the Article 15 that reduced him from SP4/E-4 to PFC/E-3 also suspended the reduction action for 30 days and, therefore, he should not have been reduced.
2. Records show the applicant received NJP in July 1972. His punishment was, in part, a reduction from SP4/E-4 to PFC/E-3 suspended for 60 days.
3. The evidence of record also shows the applicant received NJP in October 1972. His punishment was reduction from SP4/E-4 to PFC/E-3.
4. Special orders reduced the applicant from SP4/E-4 to PFC/E-3 effective
13 November 1972. Thus, the evidence of record shows the applicant was properly reduced to PFC/E-3 prior to his separation date.
5. There is no evidence of record, and the applicant provides insufficient evidence, to show he was promoted to SP4/E-4 subsequent to 13 November 1972. Thus, he is not entitled to correction of the rank/pay grade that is shown on his DD Form 214.
6. Therefore, in view of the foregoing, there is no basis for granting 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) AR20120006034
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ABCMR Record of Proceedings (cont) AR20120006034
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