IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140019632 


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 to his records to show he was promoted to the rank/grade of sergeant (SGT)/E-5 prior to his separation.

2.  The applicant states he was the victim of a crime which caused the deterioration of his mental health which in turn led to his prematurely issued discharge.  Had he not been discharged, he would have completed his initial enlistment which would have resulted in him meeting the time in service (TIS) and time in grade (TIG) requirements for promotion to the rank/grade of     SGT/E-5.

3.  The applicant provides:

* a self- authored statement
* Enlistment Reservation
* Permanent Orders 179-3081
* Orders 207-04
* Orders 207-06
* a memorandum
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 2 letters
* an unsigned 20-page statement 


 

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 enlisted in the Regular Army (RA) in rank/grade of private (PV1/E-1) on 23 January 2007.  He completed training and he was awarded military occupational specialty (MOS) 31B (Military Police).  Evidence shows he completed Airborne training on or about 6 July 2007, and he was awarded the Parachutist Badge.

3.  He was advanced to the rank/grade of private (PV2)/E-2 on 23 July 2007.  There is no evidence to show the applicant was promoted further during his period of service.  

4.  Evidence shows the applicant was recommended for separation because he had been diagnosed with an emotional and/or behavioral dysfunction of such severity that his ability to perform military duties was significantly impaired.  Other disposition of the applicant was not appropriate or feasible because he could not adequately contribute to the accomplishment of the mission due to Tourette Syndrome.

5.  On 21 November 2007, the applicant was honorably discharged in the rank/grade of PV2/E-2 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-17, by reason of "condition, not a disability."  He was issued a DD Form 214 that shows he was credited with         9 months and 29 days net active service and no lost time.  

6.  His Army Military Human Resource Record (formerly known as the Official Military Personnel File) contains insufficient evidence to support the applicant's allegation that he was a victim of military hazing.



7.  The applicant provided the following:

   a.  A personal statement in which he contends the rank reflected on his         DD Form 214 is unjust.  He states he was a crime victim and the perpetrators of the crimes committed against him were not held accountable for their actions, but remained in service and received their promotions.  He appears to contend he was a victim of military hazing and had his allegations been investigated and adjudicated, he would still be in the Army and would have received his rank through proper protocol. 

   b.  A letter from the Department of Veterans Affairs which shows he receives 100 percent (%) service connected disability for post-traumatic stress disorder and a 30% service connected disability for Tourette Syndrome, effective               22 November 2007. 
   
   c.  An unsigned and undated 20-page statement presumably written by the applicant's mother and forwarded to the Secretary of the Army claiming the applicant was a victim of military hazing and his struggle to cope with the aftereffects.

8.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), in effect at the time, prescribed the policies and procedures for the promotion and reduction of enlisted Soldiers.  It states, in part:

	a.  Company, troop, battery, and separate detachment commanders are authorized to promote Soldiers to the rank/grade of PV2/E-2, private first class (PFC)/E-3, and SPC/E-4.  Promotions to the ranks PV2, PFC, and SPC will be made automatically by the U.S. Army Human Resources Command, Total Army Personnel database for posting to the automated personnel file and the master military pay file.

	b.  Promotion to SGT and Staff Sergeant (SSG) are executed in a semicentralized manner.  Field-grade commanders in units authorized a commander in the rank/grade of lieutenant colonel/O-5 or higher have promotion authority to the rank/grades of SGT/E-5 and SSG/E-6.  Field operations will handle board appearance, promotion point calculation, promotion list maintenance, and the final execution of the promotions which occur in the field in a decentralized manner.  Headquarters, Department of the Army operations will handle promotion cutoff scores and the monthly SGT/SSG promotion selection by-name list, which are determined and announced monthly.


9.  Army Regulation 635-5 (Separation Documents), then in effect, establishes the standardized policy for preparing and distributing the DD Form 214.  The version in effect at the time stated items 4a (Grade, Rate or Rank) and 4b (Pay Grade) show the rank/grade in which a member was serving at the time of separation and item 12h (Effective Date of Pay Grade) shows the date of rank for the grade shown in item 4a.

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that 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 requests correction to his records to show he was promoted to to the rank/grade of SGT/E-5 prior to his separation.  He contends, in effect, that he was the victim of military hazing which resulted in his premature discharge and unjustly denied him further promotions.

2.  The evidence of record shows he enlisted in the RA on 23 January 2007 and he was advanced to the rank/grade of PV2/E-2 on 23 July 2007.  Evidence shows he was diagnosed with Tourette Syndrome, an emotional and/or behavioral dysfunction of such severity that his ability to perform military duties was significantly impaired.  

3.  On 21 November 2007, he was honorably discharged in the rank/grade of PV2/E-2 under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of "condition, not a disability."  There is no evidence that he was promoted or appointed beyond the rank/grade of PV2/E-2 between the date of this promotion and the date of his discharge.  

4.  Notwithstanding the applicant's contentions, the governing regulation provides that items 4a and 4b will 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.  The applicant's DD Form 214 correctly lists his rank and grade.  There is neither an error nor an injustice.






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)                                         AR20140019632





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ABCMR Record of Proceedings (cont)                                         AR20140019632



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