IN THE CASE OF:	

		BOARD DATE:	    1 May 2014

		DOCKET NUMBER:  AR20130014614 


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, restoration of his rank/grade of staff sergeant (SSG)/E-6.   

2.  The applicant states:

* He wants a thorough evaluation into why he was demoted for no apparent reason 
* He received an Article 15 that punished him with a suspended reduction
* There was no justifiable reason for his command to vacate the suspension when he was doing everything he was to do or needed to be done

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* Social Security Administration printout
* South Carolina driver license
* Retired military identification card
* DA Form 2166-7 (Noncommissioned Officer Evaluation Report)

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's records show he enlisted in the Regular Army on 7 February 1995 and he held military occupational specialty 31U (Signal Support Systems Specialist).  

3.  He served through multiple reenlistments in a variety of stateside or overseas assignment and he was promoted to sergeant (SGT)/E-5 on 1 July 1998.  At some point, he was awarded or held MOS 63B (Wheeled Vehicle Mechanic).

4.  On 20 November 2000, he was convicted by a general court-martial of one specification of simple assault with an unloaded weapon, one specification of wrongfully having intercourse with a married woman not his wife, and one specification of wrongfully communicating a threat to kill someone.  The court sentenced him to a reduction to the lowest enlisted grade, confinement for 60 days, and a reprimand.  The convening authority approved his sentence. 

5.  He was promoted back to SGT/E-5 on 1 February 2003 and to staff sergeant (SSG)/E-6 on 1 November 2004.  

6.  On 2 August 2007, he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty on five separate occasions.  His punishment consisted of:

* reduction to SGT/E-5 (suspended to be automatically remitted if not vacated by 2 February 2008)
* forfeiture of $1,291.00 pay per month for 2 months (suspended to be automatically remitted if not vacated by 2 February 2008)
* extra duty for 45 days (suspended to be automatically remitted if not vacated by 2 February 2008)
* restriction for 45 days (suspended to be automatically remitted if not vacated by 2 February 2008)

7.  Although not available for review with this case, it appears the imposing officer ordered the punishment to reduction to SGT/E-5 (suspended until 2 February 2008) that was imposed on 9 July 2007 vacated.  The applicant was reduced to SGT/E-5 on 29 September 2007. 

8.  His records contain a medical document, dated 26 September 2007, that shows he was admitted to the Bradley Center Hospital in Columbus, GA, on that date.  His blood alcohol level at 2:20 am on 26 September 2007 was 68.  He complained of having a manic episode.  The report also shows: 

	a.  He was having a labile mood and appeared to be argumentative and manipulative and had difficulty dealing with any authority.  He reported that he came back to Fort Benning in December of 2006 and that he drinks a 22 ounce Corona or two 12-ounce Ice House every day after coming home from work.

	b.  He reported feeling very upset at the job and he felt his chain of command was out to ruin his military career.  He reported that he lost his rank, and he had to do extra duty.  He felt he was being punished for charges that were not substantiated.

9.  On 3 April 2008, a physical evaluation board considered his medical conditions of thoracolumbar degenerative disc disease and Bipolar Disorder and recommended a combined disability rating of 30 percent with permanent disability retirement.  He concurred.  

10.  His Enlisted Record Brief, dated 28 April 2008, shows he was promoted to SSG/E-6 on 1 November 2004 but he was reduced to SGT/E-5 on 29 September 2007. 

11.  On 20 May 2008, Headquarters, U.S. Army Infantry Center, Fort Benning, GA, published Orders 141-2234 ordering his retirement effective 23 June 2008 and placement on the Retired List in his retired rank/grade of SGT/E-5 effective 24 June 2008.  The standard name line listed his rank as "SGT."

12.  He was retired on 23 June 2008 by reason of physical disability and placed on the Retired List effective 24 June 2008.  His DD Form 214 shows in item 4a (Grade, Rate or Rank) "SGT," item 4b (Pay Grade) "E-5," and item 12i (Effective Date of Pay Grade) "2007-09-29."

13.  Army Regulation 15-185 (ABCMR) states the ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP on 9 July 2007 that resulted in part in a suspended reduction to SGT/E-5.  Although not available for review with this case, it appears the imposing officer ordered the punishment of reduction to SGT/E-5 (suspended until 2 February 2008) vacated.  The applicant was reduced to SGT/E-5 on 29 September 2007. 

2.  The applicant has not provided any evidence to show the vacation of his reduction is in error.  He knew of the reduction and he reported it during his hospital admission in September 2007.  In the absence of evidence to the contrary, government regularity must be presumed.  Therefore, there is insufficient evidence to grant the applicant 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)                                         AR20130014614





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ABCMR Record of Proceedings (cont)                                         AR20130014614



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