IN THE CASE OF:  	  

		BOARD DATE:  19 May 2015	  

		DOCKET NUMBER:  AR20140014204 


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 restoration of his rank/pay grade to specialist four (SP4)/E-4.

2.  The applicant states:

* he contracted malaria in Biên Hòa, Vietnam, and he didn't know it at the time
* he had the shakes and chills and thought he was just cold
* he drank some alcohol to warm up
* he had a fever – his temperature reached 104 degrees and he became delirious
* he would not have been drinking if he had known he had malaria
* he was reported and was deemed to be drinking on duty
* he was subsequently demoted from E-4 to E-3
* he was diagnosed with malaria later that week
* had he known he had malaria at the time he was drinking alcohol, he would not have done so and he would have sought proper medical treatment
* he was not intoxicated and feels that his demotion would not have occurred if his malaria had been taken into consideration
* he served honorably and he has an unblemished record outside of the one incident



3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214)
* medical record extracts
* letter of appreciation, dated 19 February 1970
* Headquarters, 1st Cavalry Division, General Orders Number 20214, dated 24 November 1970

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 was inducted into the Army of the United States on 24 June 1969.

3.  On 1 February 1971 while serving in the rank/pay grade of SP4/E-4, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for possessing alcoholic beverages in the field while on duty on or about 28 January 1971.  His punishment consisted of:

* reduction of one pay grade to private first class (PFC))
* extra duty for 14 days
* restriction to the company area for 7 days

4.  On 5 February 1971, he submitted an appeal of the NJP and stated the punishment was somewhat severe and that the reduction in his pay would affect his ability to pay his creditors.

5.  On 9 February 1971, a reviewing staff judge advocate found the Article 15 proceedings were conducted in accordance with law and regulations and the punishments imposed were neither unjust nor disproportionate to the offense committed.

6.  On 13 February 1971, after consideration of all matters presented, the imposing official denied the applicant's NJP appeal.

7.  On 6 May 1971, the applicant was honorably released from active duty.  His DD Form 214 shows his rank/grade as PFC/E-3.

8.  The applicant provided medical record extracts showing he was diagnosed with malaria on 12 February 1971.  His medical record extracts also show other treatment he received as a result of his malaria.

9.  The applicant also provided:

	a.  a letter of appreciation from the Commander, Company D, 1st Battalion, 18th Infantry Regiment, 1st Infantry Division, dated 19 February 1970, commending him for providing outstanding service and assistance to the company; and

	b.  Headquarters, 1st Cavalry Division, General Orders Number 20214, dated 24 November 1970, awarding him the Purple Heart.

10.  His records are void of and he failed to provide orders showing he was promoted to SP4/E-4 after his reduction to PFC/E-3 and prior to his release from active duty.

11.  Army Regulation 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to administration of military justice.  Chapter 3 stated NJP was imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214.  It stated the DD Form 214 was a synopsis of the Soldier's most recent period of continuous active duty.  It provided a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for restoration of his rank/pay grade to SP4/E-4 was carefully considered.

2.  The evidence shows he accepted NJP and he was reduced in pay grade from E-4 to E-3.  There is no evidence showing 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.  His records are void of and he failed to provide evidence showing he was promoted to SP4/E-4 following his reduction to PFC/E-3 and prior to his release from active duty.  Therefore, his DD Form 214 properly shows his rank/grade as PFC/E-3 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)                                         AR20140014204



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ABCMR Record of Proceedings (cont)                                         AR20140014204



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