BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130012842 


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 he was discharged in the rank of specialist (SPC)/pay grade E-4.

2.  The applicant states that he was subjected to extensive and erroneous punishment by his former chain of command.  The command sergeant major had a personal grudge against him and tried to destroy his military career because he (the applicant) was a victim of a rape that occurred during military service.

   a.  He states this all occurred while he was in treatment/recovery from post-traumatic stress disorder (PTSD) and sexual trauma.  He adds that his separation and out-processing records, and records initiated when his former chain of command attempted to retain him past his expiration term of service (ETS), all show he was serving in the rank of SPC.

   b.  He states the Army Review Boards Agency (ARBA) corrected his discharge to an honorable discharge; however, it did not correct his rank.

3.  The applicant provides copies of the following documents:

* three certificates
* DA Form 137-2-R (Installation Clearance Record)
* DD Form 214 (Worksheet)
* Defense Finance and Accounting Service (DFAS) Form 702 (Leave and Earnings Statement (LES))
* DA Form 2627 (Record of Proceedings Under Article, UCMJ [Uniform Code of Military Justice])
* four separation action documents
* Departure Clearance memorandum
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Reenlistment - Update ETS [Screen Shot]

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 (RA) on 7 September 2000 for a period of 4 years.  He was awarded military occupational specialty (MOS) 63B (Light Wheeled Vehicle Mechanic).

3.  The applicant was promoted to SPC (E-4) on 21 June 2002.  He served in Iraq in support of Operation Iraqi Freedom (OIF) from 6 September 2003 to 
13 April 2004.

4.  A DA Form 2627 shows the applicant accepted nonjudicial punishment (NJP) for, between 2 July 2004 and 2 August 2004:

* wrongfully using cocaine
* wrongfully using methamphetamine

   a.  His punishment was a reduction from SPC/E-4 to private (PVT)/pay grade E-1, forfeiture of $597.00 pay per month for 2 months, 14 days of extra duty, and 14 days of restriction.

   b.  On 24 August 2004, the applicant indicated with his signature that he did not appeal the NJP.
5.  On 27 August 2004, the applicant's company commander notified him that he was recommending him for separation under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Misconduct), paragraph 14-12c, for misconduct based on commission of a serious offense. The reasons for the commander's proposed action were the applicant wrongfully used cocaine and wrongfully used methamphetamine.

6.  The applicant consulted with legal counsel and he was advised of the rights available to him.

7.  U.S. Army Trial Defense Service, Fort Bragg Field Office, Fort Bragg, NC, memorandum for record, dated 2 September 2004, subject:  Chapter Deficiency, shows the applicant's counsel advised that the applicant was notified of the administrative separation action on 27 August 2004; he met with counsel and elected to have his seven duty days to make statements; this period should begin from the date he met with counsel, which would cause him to be retained past his ETS; however, the governing Army regulation precludes such action.  Therefore, the applicant should be allowed to separate on his ETS date of 6 September 2004 with an honorable discharge.

8.  A review of the applicant's Army Military Human Resource Record failed to reveal evidence of an approved administrative separation action under the provisions of Army Regulation 635-200, chapter 14.

9.  On 2 September 2004, court-martial charges were preferred against the applicant for, between 2 July 2004 and 2 August 2004:

* wrongfully using cocaine
* wrongfully using methamphetamine

10.  On 2 September 2004, the applicant, consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.  In his request he indicated that his rank was SPC (E-4).

   a.  He acknowledged that he understood the elements of the offenses charged and that he was guilty of the charges against him, or of (a) lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.

   b.  He was advised that he might be discharged with a general, under honorable conditions discharge, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was given a general, under honorable conditions discharge.

   c.  He acknowledged that he understood that, as a result of his requested discharge action, he would automatically be reduced to the rank of PVT (E-1).

	d.  He was advised that he could submit any statements he desired in his own behalf; however, he declined to do so.

	e.  The applicant and his counsel placed their signatures on the document.

11.  The Staff Judge Advocate, 82nd Airborne, Division, Fort Bragg, NC, advised the separation authority that the applicant had submitted a request for discharge in lieu of trial by court-martial with the understanding that he may receive an under other than honorable conditions discharge (emphasis added).

12.  On 10 September 2004, the separation authority approved the applicant's request for discharge and directed separation with an under other than honorable conditions discharge (emphasis added) and that the applicant be reduced to the lowest enlisted pay grade.

13.  Accordingly, the applicant was issued a DD Form 214 that discharged him from the RA on 10 September 2004.

14.  The applicant submitted an application to the ADRB requesting upgrade of his discharge.  On 25 June 2007, the ADRB determined the applicant's discharge was inequitable.  Accordingly, the ADRB voted to grant relief in the form of an upgrade of the characterization of service to fully honorable and a change to the narrative reason for separation to Secretarial Authority.  It also shows the ADRB voted not to restore the applicant's grade.

15.  The DD Form 214 the applicant was issued shows he was honorably discharged on 10 September 2004, in the rank/grade of private (E-1), under the provisions of Army Regulation 635-200, paragraph 5-3, Secretarial Authority.  He had completed 4 years and 4 days of net active service this period.  

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

   a.  Two certificates of achievement that show the applicant was recognized for his performance of duty while serving as a member of Task Force All American during OIF and for contributions made to "America's Guard of Honor," 82nd Airborne Division.
   
   b.  A certificate that shows he was awarded the Bronze German Armed Forces Parachutist Badge on 14 December 2002.

   c.  A DA Form 137-2-R, prepared based on orders issued on 9 June 2004 for the applicant's separation (ETS) processing, that shows his rank at the time was SPC.

   d.  A DD Form 214 (Worksheet) that shows a draft copy of a DD Form 214 was prepared pending the applicant's release from active duty on 6 September 2004 based on completion of required service and shows his rank at the time was SPC (E-4) with a date of rank of 21 June 2002.

   e.  An LES for the June 2004 pay period that shows his grade was E-4.

   f.  82nd Paratrooper Support Battalion, 82nd Airborne Division, Fort Bragg, NC, memorandum, dated 6 September 2004, subject:  Departure Clearance, that shows the applicant was scheduled to ETS on 6 September 2004 in the rank of SPC.

   g.  RETAIN Screen:  Reenlistment - Update ETS, printed on 2 September 2004, that shows the applicant's grade was E-1.

17.  Army Regulation 635-5 (Separation Documents), in effect during the period of service under review, prescribes policies and procedures regarding separation documents.  It also establishes standardized policy for preparing and distributing the DD Form 214.  It states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It shows for item 4a (Grade, Rate or Rank) and item 4b (Pay Grade), enter active duty grade or rank and pay grade at time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was discharged in the rank of SPC (E-4) because he was subjected to extensive and erroneous punishment by his former chain of command, and his records just prior to his discharge show he held the rank of SPC (E-4).

2.  Records show that the applicant accepted NJP on 27 August 2004 and his punishment included reduction from SPC (E-4) to PVT (E-1).  He did not appeal the NJP.  In addition, there is no evidence of record and the applicant provides insufficient evidence to show the NJP was set aside.

3.  The records the applicant provides offer evidence that he held the rank of SPC (E-4); however, the records are based on the rank he held prior to being reduced as a result of accepting NJP.  It is noted that, on 2 September 2004, the applicant submitted his request for discharge in lieu of court-martial and he improperly indicated that his rank was SPC (E-4).

4.  The separation authority approved the applicant's request for discharge, in which the applicant had indicated his rank was SPC (E-4) and had acknowledged that he understood he would automatically be reduced to the rank of PVT (E-1). Thus, due to the applicant's improper assertion that he held the rank of SPC (E-4) and in what was an unnecessary administrative directive, the separation authority appropriately affirmed the applicant's reduction to the lowest enlisted grade, as the applicant clearly misrepresented his rank/grade in his request for discharge. 

5.  There is no evidence of record that shows the applicant was advanced, appointed, or promoted to the rank of SPC (E-4) from the date he was reduced to PVT (E-1) as a result of NJP imposed on 27 August 2004 through the date of his discharge on 10 September 2004.

6.  It is noted that in his request for discharge in lieu of court-martial, the applicant indicated he was advised that he might be discharged with a general, under honorable conditions.  The separation authority approved the request for discharge and directed an under other than honorable conditions discharge.

7.  On 25 June 2007, the ADRB determined that the applicant's discharge was inequitable and corrected the reason and characterization of his discharge.  However, the ADRB voted not to restore the applicant's grade.  It is reasonable to conclude that the ADRB failed to recognize the fact that the applicant had been properly reduced to PVT (E-1) as a result of NJP prior to initiation of his request for discharge in lieu of court-martial.

8.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's 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)                                         AR20130012842



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ABCMR Record of Proceedings (cont)                                         AR20130012842



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