BOARD DATE: 24 March 2015
DOCKET NUMBER: AR20140011564
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 DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 June 1994 to show his rank/grade as sergeant/E-5 instead of private/E-1.
2. The applicant states:
* he served his country proudly and he was glad to be a U.S. Army Soldier
* he was reduced to the rank/grade of private/E-1 for being absent without leave (AWOL)
* he was AWOL for safety reasons and for being in a state of shock
* he was the victim of sexual assault by two other Soldiers
* he did not report it and he kept it a secret because his aggressors threatened to kill him
* he feared for his life and his performance began to decline
* he was AWOL on two occasions because he was scared
* he kept his secret for years until he realized he needed help
* he has been treated for military sexual trauma through the Department of Veterans Affairs system
* his trauma has caused him to suffer from chronic post-traumatic stress disorder (PTSD), depression, and daily struggles
* he is a good citizen, family man, and veteran who needs help
3. The applicant provides no additional evidence.
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. After having prior honorable service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 9 May 1990 in pay grade E-3.
3. On 14 April 1994 while serving in pay grade E-4, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL on or about 3 April 1994 to on or about 9 April 1994. His punishment included reduction in rank/grade to private/E-1.
4. On 16 June 1994 while serving in pay grade E-1, he accepted NJP under the provisions of Article 15, UCMJ, for being AWOL on or about 1 May 1994 to on or about 24 May 1994.
5. Bravo Detachment, 15th Personnel Service Battalion (Provisional),
Orders 86-4, dated 20 May 1994, promoted him from specialist/E-4 to sergeant/E-5 effective 1 June 1994. The orders state: "Promotion is not valid and will be revoked if he is not in a promotable status on the effective date of promotion."
6. On 24 June 1994, he was honorably discharged in the rank/pay grade of private/E-1 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 4, by reason of completion of required active service.
7. His military records are void of and he failed to provide any evidence of a sexual assault or diagnosis of PTSD or any other mental health condition.
8. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, stated erroneous promotions would be revoked and Soldiers in the ranks of private through master sergeant were non-promotable to a higher grade when an administrative reduction occurred.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he was AWOL for safety reasons relating to a sexual assault by two other Soldiers was noted.
2. The evidence shows he accepted NJP on two occasions for being AWOL and he was reduced in pay grade from E-4 to E-1. There is no evidence that shows he was deprived of his right to present matters in defense, extenuation, or mitigation or that he was deprived of his right to appeal his NJP.
3. Although orders were issued promoting him to sergeant/E-5 effective 1 June 1994, he was not in a promotable status based on his reduction in rank to private/E-1. It is reasonable to presume the erroneous promotion orders were properly revoked based on regulatory guidance.
4. His records are void of and he failed to provide evidence showing he was promoted to specialist/E-4 following his reduction to private/E-1 and prior to his discharge. Therefore, his DD Form 214 properly shows his rank/grade as private/E-1 at the time of separation.
5. In view of the foregoing information, there is an insufficient evidentiary basis to grant 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 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) AR20140011564
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