IN THE CASE OF:	  

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20140020796 


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 record by restoring his rank/pay grade to specialist (SP4)/E-4.

2.  The applicant states:

     a.  He believe his record is unjust or inequitable because during his last 9.5 months in the Republic of Vietnam (RVN) he served as a flight engineer as a specialist.  Most flight engineers held higher rank.  He was an SP4 for almost 2 years.  He went to the sergeant’s board while serving in the RVN.  He was not promoted because there were no openings.  

     b.  He and nine others applied for a 6-month extension to remain in the RVN.  All requests were denied because the nightly news reported that so many troops were being brought home each day.  When he left the RVN he was the top flight engineer in his company.  When the Bob Hope Show came to visit troops in the RVN he was chosen to provide flight service.

    c.  He served in the RVN during the Kontum offensive of 1972.  He was awarded the Bronze Star Medal (BSM) and was presented with the Vietnamese Gallantry Cross with a Bronze Star.  When he returned from the RVN he was told that he would be on a ground crew.  He would not be flying because others were there before him.  They did not have the combat or flight hours that he had.


     d.  He made a big mistake when he went absent without leave (AWOL).  He turned himself in and took a discharge.  He was reduced in rank to private first class (PFC).  He received a general, under honorable conditions discharge (GD). He had received too may medals to be given a bad discharge.

     e.  He will take the GD for his mistake but not the double punishment of a reduction in grade and a GD.  Before he was told that he would not be flying anymore, he was going to reenlist.  He was 18 years of age when he went to the RVN.  He cannot put his discharge rank of PFC on the wall next to his Jump School Diploma with SP4 rank.      

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* self-authored statement
* 2 DD Forms 215 (Correction to DD Form 214)
* Airborne Course Certificate

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 13 July 1970.  Upon completion of initial entry training he was awarded military occupational specialty 67U (Helicopter Repairer).  He served in the RVN from 11 August 1971 to 6 August 1972.

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  Item 22 (Appointments and Reductions) he was advanced to SP4/E-4, effective 15 January 1971, by Order Number 10, issued by Fort Eustis, VA.

	c.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) he was AWOL from
18 September 1972 to 17 October 1972 and from 9 November 1972 to                 12 December 1972.

4. Charges were referred against him on 14 December 1972 for being AWOL from 9 November 1972 to on or about 13 December 1972.  

5.  On 14 December 1972, he consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, and the procedures and rights available to him.

6.  After consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He acknowledged:

	a.  He understood that as a result of his request he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

	b.  As a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under Federal and State laws. 
 
	c.  He understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

	d.  He had been fully informed by counsel of the elements of the offenses with which he had been charged, the facts that had to be established to sustain a finding of guilty, and the possible defenses available at the time.

     e.  He indicated statements on his behalf would be submitted.

7.  On 20 December 1972, the separation authority approved his request and directed that he be issued a GD Certificate. 

8.  On 9 January 1973, he was discharged accordingly.  He completed 2 years,  3 months, and 24 days of total active service.  The DD Form 214 he was issued at the time, as amended by DD Forms 215, dated 10 December 1975, shows in:
	a.  Item 5a (Grade, Rate, or Rank) his rank as PFC.

	b.  Item 5b (Pay Grade) his pay grade as E-3.

	c.  Item 6 (Date of Rank) his date of rank as "UNK."

	d.  Item 24 (Decorations, Medals, Badges, Commendations and Campaign Ribbons Awarded or Authorized) shows the:

* BSM
* National Defense Service Medal
* Vietnam Service Medal with three bronze service stars
* RVN Campaign Medal with Device 1960
* RVN Gallantry Cross with Palm Unit Citation
* Aircraft Crewman Badge
* Parachutist Badge
* Sharpshooter Marksmanship Qualification Badge with Automatic Rifle Bar

	e.  Item 26a (Non-Pay Periods Time Lost) he had time lost from 
18 September to 17 October 1972 and 9 November 1972 to 12 December 1972.

9.  The complete facts and circumstances pertaining to his reduction from   SP4/E-4 to PFC/E-3 or a copy of the Article 15 resulting in his reduction are not contained in the available records.  There is no evidence and he did not provide any to show he appealed his punishment.  His record is also void of any evidence that shows he was subsequently advanced to SP4/E-4 prior to his discharge.

10.  Army Regulation 27-10 (Military Justice) states that commanders may impose NJP for the administration of discipline under the provisions of Article 15, UCMJ. Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15.  This regulation also stipulates that only one appeal is permissible under Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides that Soldiers may be reduced in rank and grade as a result of misconduct in violation of the UCMJ.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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's contentions were carefully considered and determined to lack merit.

2.  By his own admission, he was AWOL and he was subsequently reduced to PFC/E-3 as a result of this action.  He readily admits his offense was deserving of some punishment, but contends the loss of rank was too harsh.

3.  Although the complete facts and circumstances of his reduction from SP4/E-4 to PFC/E-3 and the Article 15 itself are not contained in his available record, it is reasonable to presume his chain of command exercised its disciplinary authority prior to his discharge.  Accordingly, he would have been afforded an opportunity to appeal the reduction to a higher authority at the time, prior to a final decision being rendered.

4.  The ABCMR operates under the standard of presumption of regularity in governmental affairs.  This standard states that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  In the absence of evidence to the contrary, it must be presumed that he was properly reduced from SP4/E-4 to PFC/E-3 as a result of his chain of command imposing punishment for his violation of the UCMJ.  

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)                                         AR20140020796





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ABCMR Record of Proceedings (cont)                                         AR20140020796



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