BOARD DATE: 24 September 2015
DOCKET NUMBER: AR20150001749
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 (Report of Separation or Discharge from Active Duty) to show he was discharged in the rank/grade of sergeant (SGT)/E-5 vice private (PV2)/E-2.
2. The applicant states his rank/grade at the time of his discharge was SGT/E-5.
3. The applicant does not provide any 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 applicants 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 applicants 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) for 3 years on 10 June 1969. He completed the training requirements and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). He was advanced to SP4/E-4 on 13 January 1970.
3. He was honorably discharged from active duty in the rank/grade of SP4/E-4 on 11 December 1970 for the purpose of immediate reenlistment. He was issued a DD Form 214 that captured his active service and grade of E-4.
4. He reenlisted in the RA for a 4-year term on 12 December 1970. He was assigned to Korea at the time. He was promoted to SGT/E-5 on or around 10 April 1972.
5. On 22 January 1974, at Fort Benning, GA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction in the performance of his duties (failing to have his squad clean their weapons, leaving his M-60 Machine Gun unsecure, and failing to clean and secure his own weapon). His punishment consisted of a reduction to SP4/E-4 and a forfeiture of pay.
6. On 18 June 1974, he accepted NJP for twice failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a reduction to PV2/E-2 and confinement to a correctional custody facility. The sentence was suspended for 120 days
7. On 17 September 1974, he accepted NJP for being absent without leave (AWOL) from 9 to 16 September 1974. His punishment consisted of a reduction to PV2/E-2, a forfeiture of pay, and confinement for 30 days to a correctional custody facility.
8. On 31 October 1974, the applicant departed his unit in an AWOL status and on 30 November 1974, he was dropped from the rolls as a deserter. He ultimately surrendered to military authorities on 26 January 1975.
9. On 21 February 1975, he was convicted by a special court-martial of one specification of being AWOL from 4 November 1974 to 25 January 1975. The court sentenced him to confinement at hard labor for 80 days and a reduction to the lowest enlisted grade.
10. On 19 March 1975, the convening authority approved the sentence and ordered it executed. The applicant was ordered confined at Fort Benning Confinement Facility.
11. His DA Form 20 (Enlisted Qualification Record) shows he was promoted to PV2/E-2 on 22 April 1975.
12. He was honorably released from active duty on 5 May 1975. He completed 3 years, 11 months, and 21 days of creditable active service for this period and he had 154 days of lost time. His DD Form 214 shows in Items 6a (Grade, Rate or Rank) and 6b (Pay Grade) "PV2" and "E-2" respectively and in Item 7 (Date of Rank) the entry "75-04-22."
13. Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214. It states items 6a and 6b will show the active duty rank and pay grade at the time of the Soldier's separation. The rank is taken from the Soldiers promotion/reduction orders and item 7 will show the date of rank.
DISCUSSION AND CONCLUSIONS:
1. The available evidence shows the applicant was promoted to the rank/grade of SGT/E-5 in April 1972. However, he accepted NJP on 22 January 1974 that resulted in his reduction to SP4/E-4. He was also convicted by a special court-martial on 21 February 1975 and he was sentenced in part to a reduction to the lowest enlisted grade.
2. He was promoted to PV2/E-2 on 22 April 1974 and held this rank/grade at the time of his separation on 5 May 1975. There is no evidence in his records and he provides none that shows he was promoted beyond the rank/grade of PV2/E2 from the date he was reduced to the lowest enlisted grade to the date he was separated on 5 May 1975.
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) AR20150001749
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