MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 February 1999  
	DOCKET NUMBER:   AC98-09784
				   AR1999017567

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Carol Jo Suiter		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 general discharge be upgraded to honorable and that the reason for his discharge be changed from ”misconduct” to “separation from the service”.  He also requests that his rank on his                   DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed from PFC E3 to SP E-4.  The applicant attached a manually prepared pay voucher, a supplement to his final separation, which states that he was promoted to E-4 effective 1 November 1992 but kept on the system as an E-3.  Soldier (applicant) is due difference in entitlements from E-3 to E-4 for period 
1 Nov 92 – 14 Apr 93.  

APPLICANT STATES:  That his first sergeant was vindictive and changed [the rank on] his discharge without him knowing it.  He discovered prior to his discharge that he was a SP E-4, 

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

The applicant enlisted in the Army for 4 years and 17 weeks on                          21 August 1990.  He completed training, to include airborne training at Fort Benning, Georgia, and in January 1991 was assigned to an infantry unit in Panama. 

The applicant’s record contains over 20 counseling statements, all except a few of them derogatory in nature, for being late for formation, having a poor attitude, fighting, speeding, falling out of a physical training run, behavior, appearance, failure to obey a lawful order, and so forth.  All of these counseling statements show his rank as PFC and he is referred to in those statements as a PFC.  Nine of those statements are dated after 1 November 1992, and in one statement on   31 December 1992, the counselor in talking to the applicant, states:  “You question why you are not an E4”. 

On 27 January 1992 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to go to his place of duty.

On 18 February 1993 the applicant received nonjudicial punishment for failing to prepare for inspection on 12 January 1993, and for failing to shave prior to a formation on 1 February 1993.  The record of proceedings shows his pay grade as E-3, and that he received, among other punishments, a suspended reduction to pay grade E-2, to be automatically remitted if not vacated before                      7 August 1993.   

A 15 January 1993 report of mental status evaluation indicates that the applicant was mentally responsible, had the mental capacity to understand and participate in proceedings, and was mentally cleared for any administrative action deemed appropriate.

On 1 March 1993 the applicant’s commanding officer informed the applicant that he was initiating action to separate him from the Army under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct; and recommending that he receive a general discharge.

The applicant consulted with counsel and stated that he understood the basis of the action to separate him, its effects, and the rights available to him.  He stated that he understood the nature and consequences of the general discharge that he might receive.  He declined to make a statement in his own behalf.  This document of acknowledgement, which he signed, shows his rank as PFC.   

On 5 March 1993 the applicant’s commanding officer recommended that the applicant be separated from the Army.  In that recommendation, that official indicated the applicant’s record of promotions, showing only that he was promoted to PFC on 1 November 1991.

On 11 March 1993 the separation authority approved the recommendation.  Orders were published on 23 March 1993 assigning him to the transition point at Fort Jackson, South Carolina for discharge.  Those orders show his rank as PFC.

The applicant’s personnel qualification record (Part II) indicates that he was promoted to PFC E-3 on 1 October 1991 and to E-4 on 1 November 1992.

The applicant’s personnel qualification record, Part I, dated 8 April 1993, shows his rank as PFC E-3 and his date of rank as 1 October 1991.

The applicant’s installation clearance record of 12 April 1993 shows his grade as E-3, as does his statement concerning compensation from the VA, dated          13 April 1993, both documents of which he signed.  

The applicant was discharged at Fort Jackson on 14 April 1993.  His rank on his DD Form 214 is shown as PFC E-3.  He had 2 years, 7 months, and 24 days of service.

The Army Discharge Review Board, in an unanimous decision, has denied the applicant’s request to upgrade his discharge.

Information obtained from the Defense Finance and Accounting Service on         4 February 1999 revealed that that agency did have a copy of the same pay voucher submitted by the applicant.  However, records of the applicant’s pay vouchers, to include those in the months just prior to his discharge, all show his rank and pay grade as PFC E-3. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the soldier’s overall record.

Army Regulation 600-8-19 governs promotion of enlisted personnel.  Paragraph 1-9 authorizes a company commander to advance soldiers to the rank of SPC and below.  Paragraph 2-5 states, in pertinent part, that a DA Form 4187 will be prepared for advancement to SPC, and that the unit commander or the battalion S-1 will sign the form executing the advancement.  A copy of the DA Form 4187 will be filed in the soldier’s military personnel records jacket.

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

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time with no indication of procedural errors which would tend to jeopardize his rights.  In view of the applicant's numerous acts of indiscipline, it does not appear that his general discharge was severe.  The Board notes that the applicant could have received a discharge under other than honorable conditions.

2.  The Board does not believe that the applicant was ever promoted to pay grade E-4, or recommended for promotion by anyone in his chain of command.  The overwhelming preponderance of evidence covering his brief military career is conclusive, that he never rose above the rank of PFC.  The applicant himself signed numerous documents which showed his rank as PFC.  The Board can only conclude that an administrative error occurred which resulted in the pay voucher authorizing a difference in pay from E-3 to E-4. 

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  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 that would satisfy the aforementioned requirement.

5.  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

___inw__  __vbc___  ___cjs__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-09784/AR1999017567	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990211	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110.00		
2.131.00		
3.		
4.		
5.		
6.