BOARD DATE: 7 May 2013
DOCKET NUMBER: AR20120018193
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 he was discharged in the rank/grade of specialist five (SP5)/E-5.
2. The applicant states there was a company-wide drug test and everyone's results were thrown out except his. He was an outstanding Soldier with 8 years of service until he got a company commander and a platoon leader who did not like him.
3. The applicant did not provide any evidence.
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. On 1 February 1977, the applicant enlisted in the U.S. Army Reserve (USAR) for 6 years in the rank of private (PVT)/E-1. On 12 September 1977, he was discharged from the USAR and he enlisted in the Regular Army in the rank of PVT/E-1 on 13 September 1977. He held multiple military occupational specialties throughout his military service.
3. He served through two reenlistments, in a variety of stateside or overseas assignments, and he was promoted through the ranks to private first class (PFC)/E-3 on 1 July 1978, specialist four (SP4)/E-4 on 1 October 1979, SP5/E-5 on 2 May 1983, and later sergeant (SGT)/E-5 with an effective date of 23 May 1984.
4. On 11 July 1985, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on or about 4 April 1985. His punishment included a reduction to SP4/E-4, restriction and extra duty, and a suspended forfeiture of pay. He did not appeal his punishment.
5. On 27 July 1985, he failed to report to extra duty. As such, the suspended punishment of a forfeiture of pay imposed on 11 July 1985 was ordered vacated on 7 August 1985.
6. On 7 August 1985, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana on or about 22 May 1985. His punishment included a reduction to PFC/E-3, restriction and extra duty, and a forfeiture of pay. He did not appeal his punishment.
7. On 14 August 1985, he accepted NJP under the provisions of Article 15 of the UCMJ for leaving his appointed place of duty (guard duty) without authority. His punishment included a forfeiture of pay and extra duty and restriction. He did not appeal his punishment.
8. During August 1985, separation action was initiated against him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations). The separation authority ultimately approved his discharge on 22 August 1985.
9. On 30 August 1985, he was honorably discharged under the provisions of chapter 13 of Army Regulation 635-200 for unsatisfactory performance. The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows in:
* items 4a and 4b the entry "PFC" and "E-3," respectively
* item 12h (Effective Date of Pay Grade) the entry "85 08 07"
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 the time of separation and are obtained from the Soldier's records (promotion or reduction orders).
DISCUSSION AND CONCLUSIONS:
1. The applicant accepted NJP under Article 15 of the UCMJ on 20 June 1985 for using illegal drugs and he was reduced to SP4/E-4. He also accepted NJP under Article 15 of the UCMJ on 7 August 1985 for using illegal drugs and he was reduced to PFC/E-3. On 30 August 1985, he was discharged in the rank of PFC/E-3, because this is the rank he held on that date.
2. There is no evidence of record that shows he was promoted to SP4/E-4 or SP5/E-5 (SGT) again prior to discharge from active duty. His reduction in rank appears to have been a natural consequence of his misconduct. There is no evidence in his records and he provides none to corroborate the contention that everyone's drug test results were thrown out except his. In view of the foregoing, there is no basis for granting his 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) AR20120018193
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