IN THE CASE OF:	

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130010748 


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 his records to show his date of rank (DOR) for pay grade E-4 is 1 August 2006.

2.  The applicant states he was reduced in rank from specialist (SPC)/pay grade E-4 to private (PVT)/pay grade E-1 on 8 August 2008 as a result of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ). 

   a.  On 8 February 2010, the Article 15 was set aside and his rank was restored.  However, his DOR was established as 8 August 2008 (the date of the Article 15) instead of his original DOR of 1 August 2006.

   b.  He has been attempting to correct the error since early 2010 when he was retired based on disability.  He adds the DOR error is affecting his retired pay.

3.  The applicant provides a copy of his Enlisted Record Brief (ERB), two records relating to the NJP, and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 on 10 August 2004 for a period of
4 years and 18 weeks.  He was awarded military occupational specialty 88M (Motor Transport Operator).  He served in Iraq from 5 September 2006 through 22 October 2007.

3.  The applicant's ERB, dated 8 October 2009, shows in:

   a.  the Rank - DOR block:  PV2 (E-2), 1 April 2009

   b.  Section III (Service Data):

   PVT (E-1)				PV2 (E-2)			PFC (E-3)		SPC/CPL (E-4)
   8 August 2008		1 April 2009		1 June 2005		1 August 2006

   c.  section IX (Assignment Information), he was assigned to the
60th Ordnance Company, Ammunition Conversion (Direct Support), Fort Carson, CO, from 16 May 2006 through 22 September 2008.

4.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings) shows an informal PEB convened on 19 November 2009 and that the applicant's rank was "PFC."  The PEB found the applicant physically unfit, recommended a combined rating of 60%, and that he be placed on the temporary disability retired list (TDRL).  The PEB proceedings were approved on 25 November 2009.

5.  On 15 December 2009, the President, Army Grade Determination Review Board, reviewed the applicant's records and the PEB proceedings (which included an Article 15 while in the grade of E-4, dated 8 August 2008) and determined the highest grade in which he served satisfactorily for the purpose of computation of disability retirement or separation pay was his current grade of private first class (PFC)/pay grade E-3.

6.  Installation Management Command, Headquarters, U.S. Army Garrison, Fort Carson, CO, Orders 025-0006, dated 25 January 2010, released the applicant from active duty on 18 March 2010 because of physical disability and placed him on the TDRL effective 19 March 2010.  The orders were amended by Orders 047-0011, dated 16 February 2010, to show the applicant's active duty rank and retired grade of rank as SPC (E-4).

7.  His DD Form 214 shows he was honorably retired from active duty on 
18 March 2010 based on disability and placed on the TDRL.  He completed 
5 years, 7 months, and 9 days of total active service.  It also shows in:

* item 4a (Grade, Rate or Rank):  SPC
* item 4b (Pay Grade):  E04
* item 12 (Record of Service), block i (Effective Date of Pay Grade): "2008 08 08" (8 August 2008)

8.  A review of the applicant's Army Military Human Resource Record failed to reveal a copy of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ), an addendum to a DA  Form 2627-2, or any other document/record pertaining to the NJP action.

9.  In support of his application the applicant provides the following documents:

   a.  a DA Form 2627-2, dated 8 February 2010, that shows the Commander, 43d Sustainment Brigade, Fort Carson, CO, set aside the punishment(s) of NJP imposed against the applicant on 8 August 2008 on the basis that "it is unclear if the [applicant] fully understood his appellate rights at the time the Field Grade Article 15 was imposed."  It also shows, "All rights, privileges, and property affected are hereby restored" and that the document is authenticated with the superior authority's signature.

   b.  a DA Form 4187 (Personnel Action), dated 11 February 2010, that shows in:

    	(1)  section III (Request for Personnel Action):  "Other:  Reinstate to Specialist"; and

    	(2)  section IV (Remarks):  "The Soldier was given an Article 15 on 
8 August 2008.  He was reduced in rank on that day.  The Soldier was not given the proper appeal process.  Colonel D--- [Superior Authority] overturned the Article 15 and has restored his specialist rank effective date 8 August 2008."  

    	(3)  The document was signed by a commissioned officer (serving in the rank of lieutenant colonel) for the Commander, 43d Sustainment Brigade.

10.  Army Regulation 27-10 (Military Justice), chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.

   a.  Chapter 3 (NJP), paragraph 3-28 (Setting aside and restoration), provides that this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.
   
    	(1)  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under UCMJ, Article 15.  In addition, the imposing commander or successor-in-command may set aside some or all of the findings in a particular case.  If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier's records.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or punishment has resulted in a clear injustice.

    	(2)  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  

   b.  Chapter 3, paragraph 3-19b(6)(b), provides, in part, that if the reduction is suspended either on or after the punishment was imposed, or is set aside or mitigated to forfeiture, the offender’s DOR in the grade held before the punishment was imposed remains unchanged.

11.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army and contains item-by-item instructions for completing the DD Form 214.  It shows for item 12i, from the most recent promotion order (or reduction instrument), enter the effective date of promotion to the current pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show his DOR for pay grade E-4 is 1 August 2006 because the Article 15 that imposed the reduction in rank was set aside.
2.  The evidence of record shows the applicant was promoted to SPC (E-4) with a DOR of 1 August 2006.  On 8 August 2008, he was reduced in rank under Article 15.  However, on 10 February 2010, the superior authority set aside the Article 15 and a request for personnel action directed reinstatement of the applicant's rank to SPC (E-4) effective 8 August 2008 (i.e., the date of the imposition of punishment under Article 15) because it was unclear the applicant fully understood his appellate rights.

3.  The evidence of record shows that when a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action.  Despite the absence of an addendum, in this instance, the available evidence of record is sufficient to understand the basis for the Article 15 being set aside.  

4.  It is reasonable to conclude that the DA Form 4187 announcing the effective date was intended to reinstate the applicant's rank on the same date he had been reduced in rank, thereby ensuring there was no interruption/break in the applicant's military service in the rank/grade of SPC/E-4.  However, it appears the DA Form 4187 was misinterpreted to represent an adjustment of the applicant's original DOR to 8 August 2008.

5.  The evidence of record shows that when an Article 15 is set aside, any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Therefore, it would be appropriate to correct the applicant's records to show his SPC (E-4) DOR as 1 August 2006.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  issuing an appropriate document/record showing the applicant's rank of specialist/pay grade E-4 was reinstated (effective 8 August 2008) with a date of rank of 1 August 2006 with no interruption of service in that grade; and

   b.  deleting the current entry from item 12, block i of his DD Form 214 and adding the entry "2006  08  01."

2.  As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination and review the applicant's active duty and retired pay accounts and make payment to the applicant all pay (less withholdings) that he may be due as a result of this correction of records.




      _______ _   __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)                                         AR20130010748



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ABCMR Record of Proceedings (cont)                                         AR20130010748



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