BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140006407 


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 record by setting aside nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), that reduced him to pay grade E-1; restoring him to pay grade E-3; and paying him back pay.  He also requests that his reentry (RE) code be changed.

2.  He states, in effect, he should be exonerated of the offense for which he received NJP and he should be restored to pay grade E-3.  

3.  He provides no documentary evidence in support of his application.

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.  On 1 June 2000, the applicant enlisted in the Regular Army.  He completed initial entry training, and he was awarded military occupational specialty 31C (Single Channel Radio Operator).

3.  On 1 May 2002, he was retired and placed on the Temporary Disability Retired List in pay grade E-1 after completing 1 year, 11 months, and 1 day of net active service.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time shows in:

* item 12h (Effective Date of Pay Grade) – 8 March 2002
* item 25 (Separation Authority) – Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(2)
* item 26 (Separation Code) – SFK
* item 27 (RE Code) – 4R

4.  His record is void of documentation related to any NJP he may have received.  

5.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  It states:

	a.  Promotion to pay grade E-2 requires 6 months of time in service (TIS) and promotion to pay grade E-3 requires 12 months of TIS and 4 months of time in grade.

	b.  Reduction to a lower grade as the result of NJP is effective the date the commander imposing the punishment signed below item 4 of DA Form 2627 (Record of Proceedings under Article 15, UCMJ), if not suspended, or the date the appropriate commander signed DA Form 2627–2 (Record of Supplementary Action Under Article 15, UCMJ) vacating a suspended punishment of a reduction in grade.

6.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  It states setting aside and restoration is an action whereby NJP 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.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all NJP imposed upon an individual under Article 15, UCMJ.  In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of NJP has resulted in a clear injustice.  “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 of clear injustice 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.  

7.  Army Regulation 635-5-1 (Separation Program Designators (SPD)) provides the SPD code to be entered in item 26 of the DD Form 214.  Soldiers retired for temporary disability under the provisions of Army Regulation 635-40, paragraph 4-24b(2), are assigned SPD code "SFK."

8.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army and Reserve Component Soldiers.  The cross reference table in effect at the time shows that SPD code "SFK" has a corresponding RE code of 4.  The letter "R" is entered with the RE code when a Soldier has retired for length of service.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant had sufficient time in service to be promoted to pay grade E-3, but when he was retired for temporary disability he held pay grade E-1 with an effective date of 8 March 2002.  The available records do not show why he was reduced to pay grade E-1, but he indicates his reduction was the result of NJP under the provisions of Article 15, UCMJ.

2.  In the absence of evidence showing otherwise, it must be presumed that he was reduced in accordance with the governing regulations and that his rights were protected during the action that led to his reduction.  The available records provide an insufficient basis for setting aside the NJP he claims he received, for restoring him to pay grade E-3, or for paying him any back pay. 

3.  Based on the reason for his retirement, he was not eligible to be assigned any RE code other than "4."  Because he did not retire for length of service, the letter "R" should not have been entered with his RE code.  It would be appropriate to amend item 27 of his DD Form 214 by replacing the entry "4R" with the entry "4."  






BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  __X______  _X___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by replacing the entry "4R" in item 27 of his DD Form 214 with the entry "4." 

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to setting aside NJP, restoring him to pay grade E-3, and paying him back pay.



      _________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)                                         AR20140006407





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ABCMR Record of Proceedings (cont)                                         AR20140006407



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