IN THE CASE OF:	  

		BOARD DATE:	  13 June 2013

		DOCKET NUMBER:  AR20120021468 


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 the rank on his discharge be upgraded from private/pay grade E-1 to sergeant/pay grade E-5.

2.  The applicant makes no statement in support of his application.

3.  The applicant provides:

* page one of his DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 9 December 1968
* a letter, dated 11 September 1972, from Headquarters, First U.S. Army, Fort George G. Meade, MD
* two Radiologic Examination Reports with transcription dates of 4 August 1993 and 14 February 1996
* a receipt, dated 28 July 2011, from the Mologne House, Walter Reed Army Medical Center, Washington DC
* a letter, dated 7 April 2006, from the Army Review Boards Agency (ARBA)

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.  He was initially enlisted in the Regular Army on 19 January 1967 as a private/pay grade E-1 for a period of 2 years.  He did not complete basic combat training.  

	a.  On 7 March 1967, he was convicted by a summary court-martial of feigning a sore back for the purpose of avoiding his duty as a trainee.

	b.  On 21 June 1967, he was convicted by a special court-martial and sentenced to confinement at hard labor for 6 months for being absent without leave from:

* 9 March to 15 March 1967
* 25 March to 7 June 1967

	c.  On 9 August 1967, he received an undesirable discharge due to unfitness – frequent involvement in incidents of a discreditable nature with civil or military authorities.  He completed 2 months and 1 day of net active service that was characterized as under conditions other than honorable.  He accrued 140 days of lost time.  His DD Form 214 shows his rank as private and his pay grade as E-1.

4.  On 9 December 1968, he again enlisted in the Regular Army for a period of 2 years as a private/pay grade E-1.

	a.  He accepted nonjudicial punishment (NJP) on:

* 18 December 1968 for showing disrespect toward a noncommissioned officer
* 3 February 1969 for failing to obey a lawful order given by the company charge of quarters

	b.  On 15 May 1970, he was promoted to private/pay grade E-2.

	c.  On 2 March 1971, he was convicted by a special court-martial of assault on a specialist four by striking him with his fist on the head.  His sentence included confinement at hard labor for 2 months.  

	d.  On 31 March 1971, he was released from active duty and transferred to the U.S. Army Reserve (USAR).  He completed 2 years, 1 month, and 28 days of active service that was characterized as under honorable conditions.  He accrued 25 days of time lost under Title 10, U.S. Code, section 972 and 29 days of time lost subsequent to the normal expiration of his term of service.  He was held beyond his expiration of term of service date for 1 month and 28 days for the convenience of the government.  His DD Form 214 shows his rank as private and his pay grade as E-1.

5.  On 1 December 1974, he was discharged from the USAR as a private/pay grade E-2 with a general discharge.

6.  The following documents submitted by the applicant identify him as a sergeant:

* a letter, dated 11 September 1972, from Headquarters, First U.S. Army, Fort George G. Meade, MD
* two Radiologic Examination Reports with transcription dates of 4 August 1993 and 14 February 1996
* a letter, dated 7 April 2006, from ARBA

7.  Article 58a of the Uniform Code of Military Justice states unless otherwise provided in regulations to be prescribed by the Secretary concerned, a court-martial sentence of an enlisted member in pay grade above E-1, as approved by the convening authority, that includes confinement or hard labor without confinement reduces that member to pay grade E-1, effective on the date of that approval.

8.  Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214.  This regulation stated that the active duty grade at the time of separation would be entered on the DD Form 214.

DISCUSSION AND CONCLUSIONS:

1.  His special court-martial of 21 June 1967 included a sentence of confinement, thereby automatically reducing him to private/pay grade E-1.  He was confined until 8 August 1967 and discharged on 9 August 1967.  Therefore, his rank and pay grade on his DD Form 214 with an effective date of 9 August 1967 is correct.

2.  His special court-martial of 2 March 1971 included a sentence of confinement, thereby automatically reducing him to private/pay grade E-1.  He was discharged 29 days later on 31 March 1971.  Therefore, his rank and pay grade on his DD Form 214 with an effective date of 31 March 1971 is correct.

3.  Although he has provided four documents that identify him as a sergeant there is no evidence in his military personnel records that he was ever promoted above the rank of private/pay grade E-2.

4.  In view of the above, there is no basis to grant relief in this case.

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 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)                                         AR20120021468



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ABCMR Record of Proceedings (cont)                                         AR20120021468



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