IN THE CASE OF:	  

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20150002047 


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 from Active Duty) to reflect his rank/pay grade as specialist four/E-4 as opposed to private first class/E-3.

2.  The applicant states:

* there are variant copies of his DD Form 214
* the copy he was furnished upon his release from active duty which bears his signature shows his rank as specialist four
* another DD Form 214, unsigned by him, shows his rank as private first class but is identical to the one he signed in all other respects
* when he inquired about the discrepancy, he received the included letter from the National Personnel Records Center, dated 18 December 2014
* if his rank was private first class upon release from active duty he should have been so informed
* there should not be an alternate DD Form 214 he was not previously aware of

3.  The applicant provides:

* Headquarters, U.S. Army Military District of Washington, Orders 42-3, dated 30 August 1976, releasing him from active duty effective 8 October 1976 wherein his rank is listed as specialist four
* DD Form 214 releasing him from active duty on 8 October 1976 wherein his rank and pay grade are listed as specialist four/E-4
* DD Form 214 releasing him from active duty on 8 October 1976 wherein his rank and pay grade are listed as private first class/E-3
* Reserve Components Personnel and Administration Center 
Orders 08-1107969, dated 24 August 1977, discharging him from the Standby Reserve
* letter from the National Personnel Records Center, dated 18 December 2014

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 initially enlisted in the Regular Army on 21 September 1971 for a 2-year period.  Although subsequent discharge and reenlistment documentation is not in his available records, it appears he was discharged for the purpose of immediate reenlistment on 10 October 1973.

3.  Headquarters, 2d Infantry Division, Special Orders Number 154, dated 9 August 1974, promoted him to specialist four/E-4 with an effective date of 1 August 1974.

4.  On 7 May 1976, his immediate commander recommended a bar to reenlistment against him based on his:

* substandard duty performance
* acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 September 1975 for being absent from his place of duty
* apprehension by authorities for the sale of phenmetrizine (a stimulant drug) on 7 October 1975, for which all charges were dismissed based on a defense motion for lack of a speedy trial at a 12 April 1976 general court-martial
* 
indebtedness
* questionable moral character

5.  On 24 May 1976, he submitted statements in his behalf, contending he should not be barred from reenlistment as his commander making the recommendation was not an impartial party, his innocence with regard to the court-martial charges that were dismissed should not be called into question, and his exhibited personality traits and moral character exceeded his commander's poor characterization of them.

6.  On 26 May 1976, the bar to reenlistment was approved and filed in his official military personnel file.

7.  On 27 August 1976, he received NJP under the provisions of Article 15 of the UCMJ for absenting himself from his place of duty on 17 August 1976 and failing to obey a lawful order issued by his first sergeant to report to the orderly room on 18 August 1976.  The commander considered all matters presented in defense and/or extenuation and mitigation and imposed the following punishments:

* reduction to the grade of private first class
* forfeiture of pay for 7 days
* performance of extra duty for 7 days

8.  Headquarters, U.S. Army Military District of Washington, Orders 42-3, dated 30 August 1976, relieved the applicant from active duty and assigned him to the U.S. Army Reserve Control Group (Standby) effective 8 October 1976.  His rank in these orders is shown as specialist four.

9.  On 21 September 1976, he appealed his NJP received on 27 August 1976, requesting the punishment be set aside or suspended.  He argued he was unable to report to his place of duty on 17 August 1976 due to a legal appointment and followed proper procedures by calling his duty station to inform them of this, yet his supervisor had not yet arrived to work and the message was passed on via telephone to a subordinate.  He argues that he never spoke with his first sergeant whatsoever and a staff sergeant spoke with him, supposedly conveying the first sergeant's order for him to report to the orderly room on 18 August 1976, but the staff sergeant never conveyed that message.

10.  On 28 September 1976, the commander issuing the NJP submitted a rebuttal of the applicant's appeal, reiterating the validity of the NJP as issued.

11.  On 7 October 1976, a Judge Advocate General colonel considered the appeal and rebuttal and determined allegation 2 (disobeying a direct order from his first sergeant) was not supported by the facts of the case in that the order was not given by the person alleged.  Punishment 2 (forfeiture of pay for 7 days) was ambiguous and not executable.  As a matter of law, he determined allegation 2 and forfeiture of pay should be set aside.

12.  On 8 October 1976, the Commander, U.S. Army Garrison, Fort Myer, granted the applicant's appeal in part, setting aside forfeiture of pay and withdrawing allegation 2 as it was not supported by the facts of the case.  The first allegation of absenting himself from his place of duty and the subsequent punishments of reduction to the grade of private first class and performance of 7 days of extra duty were upheld.  The applicant signed the document on 8 October 1976.  His military records are void of orders reducing him in rank to private first class.

13.  On 8 October 1976, he was honorably released from active duty under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 2, due to reaching his expiration term of service (ETS).  He was transferred to the U.S. Army Reserve Control Group (Standby).  The DD Form 214 in his military records shows his rank/pay grade as private first class/E-3 and is signed by him.

14.  He provided a copy of his DD Form 214 in which his rank/pay grade are listed as specialist four/E-4.  A copy of this DD Form 214 in which his rank/pay grade is shown as specialist four/E-4 is not in the applicant's available military records.

15.  After his discharge from the Regular Army, his records indicate he was assigned to the Standby Reserve from 9 October 1976 through 20 September 1977 when he was discharged per Reserve Components Personnel and Administration Center Orders 08-1107969, dated 24 August 1977.  His rank was listed as private first class in these orders.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 2, in effect at the time, provided that no enlisted member may be discharged before his term expires except as prescribed by the Secretary of the Army or by sentence of a general or special court-martial.  An individual enlisted, inducted, or ordered to active duty normally will be discharged or released from active duty on the date upon which he completes the period for which enlisted, inducted, or ordered to active duty.  Individuals whose reenlistment is precluded for any reason will not be retained beyond the last day of the month in which their ETS falls.  Either an honorable or general discharge is authorized under this chapter.

17.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice.  Chapter 3 states NJP is 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.

18.  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 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 request for correction of his DD Form 214 to reflect his rank/pay grade as specialist four/E-4 as opposed to private first class/E-3 was carefully considered.

2.  The discharge orders issued to him on 30 August 1976, reflecting his rank as specialist four, pre-date the finalization of his NJP and the issuance of his DD Form 214 on 8 October 1976.  Thus, the rank shown is reflective of his rank at the time the orders were published which was prior to his ordered reduction to private first class.

3.  The evidence clearly shows he received NJP under the provisions of Article 15 of the UCMJ on 27 August 1976, very shortly before his discharge, which ordered his reduction in rank to private first class.  He was afforded the opportunity to appeal the NJP and his reduction in rank was upheld by the Office of the Judge Advocate General and the Commander, U.S. Army Garrison, Fort Myer, on 8 October 1976, upon appeal.

4.  Although subsequent orders reducing him in rank to private first class prior to his discharge are not in his available records for review, it is clearly seen in the record of proceedings under Article 15 of the UCMJ that the punishment of reduction in rank to private first class was ordered and upheld upon appeal immediately preceding his discharge.  Thus, there is a presumption of regularity with regard to his reduction in rank.

5.  The DD Form 214 in the applicant's military records signed by him shows his rank/pay grade as private first class/E-3 in keeping with the NJP issued on 27 August 1976 and upheld on 8 October 1976.  Although he provided a copy of a DD Form 214 wherein his rank/pay grade are shown as specialist four/E-4, there is no copy of this document in his official military records.

6.  Further, his discharge orders from the U.S. Army Standby Reserve which post-date his discharge from active duty likewise reflect his rank as private first class.

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)                                         AR20150002047



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ABCMR Record of Proceedings (cont)                                         AR20150002047



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