BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130003470 


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 military service records to show he held the rank of private first class (PFC)/pay grade E-3 and payment of all back pay he is due.

2.  The applicant states he was improperly reduced in rank from PFC (E-3) to private (PV2)/pay grade E-2 for a period of one month with the punishment suspended for 60 days.  Then, he was incorrectly paid as a private (PV1)/pay grade E-1 from 23 February 1972 until he was separated on 26 March 1973.

3.  The applicant provides a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 23 February 1972, and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 was inducted into the Army on 24 March 1971.

   a.  Upon completion of training he was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

   b.  He was assigned overseas to Vietnam and promoted to PFC (E-3) on 
20 August 1971.
   
3.  A DA Form 2627-1 shows the applicant received nonjudicial punishment (NJP) on 23 February 1972.  His punishment was, in part, reduction in pay grade to E-2 suspended for 60 days.

4.  Headquarters, 196th Infantry Brigade, Special Orders Number 113, dated
22 April 1972, show the applicant was reduced from PFC (E-3) to PV2 (E-2) effective 23 February 1972.  The reason for the reduction was misconduct.

5.  The applicant's records contain a DA Form 20 (Enlisted Qualification Record) and also a temporary DA Form 20.  Item 33 (Appointments and Reductions) of the two documents show the applicant was:

* reduced (by orders) to PV2 (E-2) effective 23 February 1972
* reduced (by court-martial) to PV1 (E-1) effective 20 May 1972

6.  A DA Form 428 (Application for Identification [ID] Card), dated 31 July 1972, shows the applicant applied for a military ID card.  He indicated that his rank was "PV1" and he signed the application.

7.  Two DA Forms 2627-1 show the applicant received NJP on 13 October 1972 and also on 5 March 1973.  Both Article 15s show his rank was PV1 (E-1).

8.  Headquarters, 1st Battalion, 2nd Infantry, 1st Infantry Division (Mechanized), Fort Riley, KS, Summary Court-Martial Order Number 11, dated 13 March 1973, shows the applicant was convicted at a summary court-martial on 13 March 1973.  The orders show his rank was PV1 (E-1).

9.  The applicant's DD Form 214 shows he was honorably released from active duty on 26 March 1973 based on expiration term of service and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his Reserve obligation.

   a.  He completed 2 years and 4 days of net active service this period.

   b.  It shows in:

* item 5a (Grade, Rate or Rank):  PV1
* item 5b (Pay Grade):  E-1
* item 6 (Date of Rank):  20 May 1972
* item 32 (Signature of Person Being Transferred or Discharged):  the applicant signed the document

10.  A review of the applicant's military personnel records failed to reveal any evidence that he was advanced or promoted in rank/grade at any time after he was reduced to PV1 (E-1) on 20 May 1972.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military service records should be corrected to show he served in the rank of PFC (E-3) from 23 February 1972 until he was separated on 26 March 1973 and payment of all back pay he is due because he was improperly reduced to PV1 and paid in grade E-1.

2.  The evidence of record shows the applicant received NJP on 23 February 1972 and his punishment was, in part, reduction in pay grade to E-2 suspended for 60 days.

3.  On 22 April 1972, the applicant's commander reduced him to PV2 (E-2) effective 23 February 1972 based on misconduct.  This reduction action was within the 60-day period of the suspension imposed by NJP.  It appears that the imposing authority vacated the suspension of the reduction.

4.  The evidence of record shows the applicant was then reduced (by court-martial) to PV1 (E-1) on 20 May 1972.  In addition, on 31 July 1972, the applicant acknowledged with his signature that his rank was PV1.

5.  There is no evidence of record that shows the applicant was advanced or promoted in rank/grade at any time after he was reduced to PV1 (E-1) on 20 May 1972.

6.  Thus, in the absence of evidence to the contrary, records fail to support the applicant's contention that he was improperly reduced in rank/pay grade or that he was incorrectly paid during the period of service under review.

7.  Therefore, in view of all 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)                                         AR20130003470



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ABCMR Record of Proceedings (cont)                                         AR20130003470



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