BOARD DATE:	  2 June 2013

		DOCKET NUMBER:  AR20120020925 


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 reinstatement of his rank/pay grade of specialist five (SP5)/E-5.  

2.  He states:

	a.  He is requesting reinstatement of his rank of SP5 based on a statement submitted with his nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  In the statement, his company commander stated he had been counseled for his alcohol consumption, but he never received counseling. 

	b.  There was no disciplinary action taken against him and he was offered no counseling prior to demotion.  He admitted he committed the offense, but he believes it was wrong to take his rank without offering him any type of intervention or counseling.  Following the incident, he served admirably in combat and was discharged honorably while being decorated during his time in Vietnam.

3.  He provides:

* Letter addressed to a general officer
* DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ)
* Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 4 (Enlistment Record - Armed Forces of the United States)
* DD Form 215 (Correction to 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.  The applicant served in the Regular Army (RA) from 15 April 1964 to 
28 October 1965 until he was honorably discharged for immediate reenlistment.  

3.  On 29 October 1969, he reenlisted in the RA in military occupational specialty 36E (Cable Splicer).

4.  His DA Form 20 (Enlisted Qualification Record) shows he was promoted to SP5/E-5 on 11 May 1966.  

5.  In a letter, dated 26 January 1967, the applicant's company commander requested disciplinary action be taken against the applicant under the provisions of Article 15, UCMJ, for failing to report to the Wire Station due to the amount of alcoholic beverages he consumed during the night.  The company commander stated the applicant had an acute alcohol problem and counseling by the wire officer and the undersigned (company commander) had been to no avail.  Further, the company commander stated, whenever the applicant committed an offense, he pleaded with the wire officer for a reduction in rank because he did not desire the responsibility placed on him as a SP5/E-5.  While administering the Article 15 to the applicant, the undersigned (company commander) was informed by the applicant that he did not desire the rank of SP5/E-5 because he did not want the responsibility of the rank.  Therefore, the company commander recommended the applicant be reduced to the rank of specialist four (SP4)/E-4.  

6.  On 1 February 1967, he accepted NJP under the provisions of Article 15, UCMJ, for failing to report to his prescribed duty station on 21 January 1967, due to overindulgence of alcoholic beverages.  He was reduced to the rank of 
SP4/E-4.
7.  On 6 July 1969, he was honorably released from active duty by reason of overseas returnee.  Items 5a (Grade, Rate, Rank) and 5b (Pay Grade) of his DD Form 214 show the entry "SP4" and "E-4," respectively.

8.  His service record does not contain any evidence which indicates he was promoted back to SP5/E-5 prior to being released from active duty on 6 July 1969.

9.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  The grade in which enlisted personnel served at the time of separation would be entered in item 5a and pay grade in item 5b of the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to SP5/E-5 on 11 May 1966.

2.  He received an Article 15 on 1 February 1967 for failing to report to his prescribed duty station due to overindulgence of alcoholic beverages.  He was reduced to SP4/E-4 as a result of this misconduct.  

3.  His service record includes a letter from his company commander which stated he had an acute alcohol problem and he had been counseled by the Wire Officer and by the company commander, but to no avail.  The letter also indicated the applicant repeatedly requested a reduction to E-4 whenever he committed an offense because he did not want the responsibility of a SP5/E-5.  

4.  His service record does not indicate he was promoted back to the rank of SP5/E-5 prior to separation.  Therefore, his DD Form 214 shows the appropriate rank/grade of SP4/E-4 and there is no basis to correct his records to show his rank as SP5/E-5.  








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)                                         AR20120020925



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ABCMR Record of Proceedings (cont)                                         AR20120020925



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