MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            17 December 1998                  
	DOCKET NUMBER:   AC98-11724

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. Theodore Heartley		Analyst	

  The following members, a quorum, were present:

	Ms. Karen L. Wolff 		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Kenneth L. Wright		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his DD form 214, separation document, be corrected to show his rank as specialist (SP4) (E-4).

APPLICANT STATES:  In effect, that on the date of discharge, he held the rank of specialist yet his DD Form 214 shows his rank as private first class (PFC) (E-3).  He further states that Department of the Army orders dated 27 December 1978 also shows his rank as specialist (E-4).  

In support of his request, the applicant submitted a copy of an order dated 27 December 1978 from Fort Polk, Louisiana.

EVIDENCE OF RECORD:  The applicant's military records show:

He had 6 months and 24 days of prior active service in the National Guard.  He enlisted in the Regular Army on 17 January 1975 for a period of 4 years.  His initial training as a light infantryman occurred at Fort Polk.  

Between 15 April 1975 and 1 September 1977, he served in Italy, Germany, Fort Benning, Georgia, and a second tour of duty at Fort Polk.

On 14 February 1978, non judicial punishment (NJP) by Article 15, UCMJ was imposed against him for AWOL from 27 January 1978 to 2 February 1978.  His punishment consisted of reduction to PFC E-3, forfeiture of $107.00 per month for 1 month suspended for 30 days and 7 days at the central confinement facility (CCF).

On 27 June 1978, he was apprehended by civilian authorities and placed in civilian confinement pending disposition of charges.  His records do not contain the specific details of those charges.

On 30 June 1978, he was released from civilian confinement and returned to duty.  The charges pending against him were dismissed without trial or acquittal.

His records contain a DA Form 4187, personnel action, showing that he was reported AWOL at 0630 hours, 19 October 1978.  A second DA Form 4187 shows that he surrendered at his unit, 1645 hours, 25 October 1978 after 6 days of AWOL.  Both documents show his rank as specialist (SP4).

His records contain an order dated 28 November 1978 issued by Headquarters, 5th Mechanized Infantry Division and Fort Polk pertaining to his discharge from the Regular Army with an effective date of 1 February 1979.  The order listed the applicant’s full name, SSN, unit, and rank as PFC.  This order is similar to the order submitted by him in support of his request to this Board.

His records contain an order dated 27 December 1978 issued by Headquarters, 5th Mechanized Infantry Division and Fort Polk pertaining to the award of military occupation specialty (MOS) 11H10, a new MOS in the Army inventory for infantryman holding MOS 11B, additional skill identifier (ASI) P4.  

ASI P4 identified those soldiers qualified to operate tube launched, optically sensed, wire guided (TOW) weapons.  The order stated, in effect and in pertinent part, that primary MOS 11H10 was awarded and that primary MOS11B30P4 withdrawn effective 22 December 1978.  The order listed the applicant’s full name, SSN, unit, and rank as SP4.  There is nothing in this order pertaining to promotion to SP4.  This order is identical to the order submitted by him in support of his request to this Board.

His DD Form 214 shows that he was separated in the rank PFC with an Honorable Discharge Certificate on 1 February 1979.  He had completed a total of 7 years, 3 months and 16 days of service for pay purposes with 16 days of lost time.

On 8 January 1981, a DD Form 215, correction to the DD Form 214, was issued to him to correct the total number of days lost time from 16 days to 8 days and correct the inclusive dates of AWOL from 27 January 1978 to 2 February 1978 and from 19 October 1978 to 19 October 1978.

There was no evidence in his record showing that he was promoted to SP4 subsequent to his reduction to PFC on 14 February 1978 and prior to his separation on 1 February 1979.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s claim that he held the rank of specialist on the date of his separation from active duty and his DD Form 214, erroneously, shows his rank as private first class is without merit.

2.  The order, submitted by him and also contained in his records, is an order authorizing the award of military occupation specialty 11H10.  Although it shows his rank as specialist or SP4, it does not substantiate his claim that he held the rank of specialist on the date of his separation.  

3.  Additionally, other documents in his records such as the DA Form 4187s, also show his rank as SP4.  However, the discharge order shows his rank as PFC.  The fact that some documents show his rank as SP4 merely points to administrative error and in no way substantiates his correct rank at the time of their preparation.
4.  Subsequent to his reduction, his promotion to specialist would have been accomplished on an order similar to the order awarding MOS 11H10 or on a DA Form 4187, personnel action and would have announced his promotion to specialist with an effective date.  No such document exists in his records.  

5.  The Board further concludes that the occurrence of a promotion to specialist before his separation on 1 February 1979 was highly unlikely considering his conduct and behavior subsequent to his reduction to PFC on 14 February 1978 including civil confinement in June 1978 and a second AWOL in October 1978. 

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence which would satisfy the aforementioned requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.