IN THE CASE OF:
BOARD DATE: 16 December 2014
DOCKET NUMBER: AR20140006470
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, reinstatement of his rank/grade to specialist four (SP4)/E-4 with entitlement to pay for 6 months.
2. The applicant states his pay was withheld from him without his knowledge for a period of 6 months. At the time, he completed 14 days of suspension until his discharge in July 1968 as an E-4. Upon completion of his restriction, he was supposed to be given his SP4/E-4 back. This did not occur and he was neither informed by his commanding officer nor received his pay as an E-4. As a veteran of the Vietnam War, he feels since this information was withheld from him he deserves his original rank of SP4.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)).
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 record shows he was inducted into the Army of the United States on 6 September 1966 and he held military occupational specialty 76P (Stock Control and Accounting Specialist).
3. He served in Vietnam from on or about 14 July 1967 to on or about 11 July 1968, where he was assigned to the 218th Collection, Classification, and Salvage Company.
4. Headquarters, 218th Collection, Classification, and Salvage Company Special Orders (SO) Number 90, dated 20 October 1967, advanced him from private first class (PFC)/E-3 to the Temporary (T) rank/grade of SP4/E-4 effective 20 October 1967.
5. On 5 December 1967, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for disobeying a lawful order and operating a 1/4-ton truck in a reckless manner. His punishment consisted of reduction to PFC/E-3 and restriction for 14 days. He elected not to appeal.
6. Headquarters, 218th Collection, Classification, and Salvage Company Unit Orders Number 109, reduced him to PFC/E-3 effective 5 December 1967 by reason of misconduct.
7. Item 33 (Appointments and Reduction) of his DA Form 20 (Enlisted Qualification Record) shows he was advanced to SP4/E-4 on 20 October 1967 and reduced to PFC/E-3 on 5 December 1967.
8. Headquarters, U.S. Army Personnel Center, Oakland, CA SO Number 193, dated 11 July 1968, reassigned him to the U.S. Army Transfer Station for separation outprocessing effective the date of the orders. His rank is listed as PFC.
9. There are no documents in his record that confirm he was promoted back to SP4/E-4 after his reduction and prior to his separation from the Army.
10. He was honorably released from active duty on 11 July 1968 and transferred to the U.S. Army Reserve Control Group (Annual Training). His DD Form 214 shows in:
* items 5a (Grade, Rate, or Rank) and 5b (Pay Grade), PFC and E-3
* item 6 (Date of Rank), 5 December 1967
* item 30 (Remarks), item 5a, PFC/E-3
11. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel. Chapter 7 contained Army-wide promotion policy and procedures. It stated that promotions of enlisted personnel, appointments, grade reductions, and grade restorations were announced in orders.
12. Army Regulation 635-5 (Separation Documents) at the time established the standardized policy for preparing and distributing the DD Form 214. Chapter 2 of this regulation in effect at the time contained guidance for the preparation of the DD Form 214. It stated that items 5a and 5b show the active duty rank and pay grade at the time of the Soldier's separation, the rank is taken from the Soldier's promotion/reduction orders, and item 6 shows the date of rank.
DISCUSSION AND CONCLUSIONS:
1. The applicant was advanced to SP4/E-4 on 20 October 1967. However, on 5 December 1967, he accepted NJP under the provisions of Article 15 of the UCMJ for misconduct. His punishment consisted of two things: reduction to PFC/E-3 and restriction for 14 days. Neither was suspended. The fact that he completed the restriction does not affect the reduction.
2. There are no documents in his record that confirm he was promoted back to SP4/E-4 from the time he was reduced to the time he was separated from the Army. Therefore, his rank and grade of PFC/E-3 are correctly shown on his separation orders as well as the DD Form 214. He is not entitled to 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) AR20140006470
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