IN THE CASE OF:
BOARD DATE: 21 July 2015
DOCKET NUMBER: AR20140020736
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, that he be restored to the pay grade of E-4 and that his DD Form 214 (Report of Separation from Active Duty) be corrected accordingly.
2. The applicant states that nonjudicial punishment (NJP) was imposed against him for being disrespectful towards a noncommissioned officer and he was reduced from the pay grade of E-4 to E-1. After the NJP was imposed he continued to do his duty and his performance continued to improve and he does not believe that he should have been reduced in rank. He also states that he has served his community well and worked honorably until his retirement.
3. The applicant provides copies of his divorce decree, birth certificate, nine third-party character statements, a short self-authored essay, and three five by six inch index cards.
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 on 12 September 1975 for a period of 3 years and training as a combat engineer. He completed his one-station unit training as a combat engineer at Fort Leonard Wood, Missouri and was transferred to Fort Ord, California for his first and only assignment.
3. He was advanced to the pay grade of E-4 on 1 October 1977.
4. On 20 August 1976, NJP was imposed against the applicant for striking another Soldier in the face with his fist.
5. On 24 May 1978, NJP was imposed against the applicant for failure to go to his place of duty and for being disrespectful in language toward a superior noncommissioned officer. His punishment consisted of a reduction to the pay grade of E-3 (suspended for 60 days), a forfeiture of $113.00 and extra duty for 7 days.
6. On 8 August 1978, NJP was imposed against the applicant for being disrespectful in deportment towards a superior noncommissioned officer by disrupting a landmine warfare class, being disrespectful in language toward a superior noncommissioned officer, being disrespectful in language toward a superior commissioned officer, and wrongfully communicating a threat to commit bodily harm to a superior noncommissioned officer. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of $199.00 and extra duty for 25 days. The applicant did not appeal the punishment.
7. On 11 September 1978, the applicant was honorably released from active duty (REFRAD) in the pay grade of E-1 due to the expiration of his term of service. He had served 3 years of active service.
8. Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that the DD Form 214 will reflect information from official records that are in effect at the time of separation. Subsequent changes that occur outside of the period covered by that form will not be entered on the DD Form 214 retroactively.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions and supporting documents have been carefully considered and appear to lack merit.
2. The evidence of record clearly shows that the applicant was reduced from the pay grade of E-4 to the pay grade of E-1 in accordance with the laws and regulation in effect at the time with no violations of any of the applicants rights and his punishment was appropriate given the circumstances.
3. Accordingly, the applicant was REFRAD 33 days after his reduction in grade and it was properly recorded on his DD Form 214. Inasmuch as there appears to be no error or injustice in his case, there is no basis for granting his request to have his rank restored.
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) AR20140020736
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ABCMR Record of Proceedings (cont) AR20140020736
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