MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           9 April 2002     
	DOCKET NUMBER:   AR2002066749

	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. Carl W. S. Chun		Director	
	Mr. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Mr. Raymond J. Wagner		Member	
	Mr. Donald P. Hupman, Jr.		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 (Certificate of Release or Discharge from Active Duty) be changed to show that he was discharged in pay grade E-5.

APPLICANT STATES:  In effect, his DD Form 214 is in error and that he was an E-5 at the time of his release from active duty.  He states that the Board should find it in the interest of justice to consider the case, because he did not know that his DD Form 214 was in error until recently when he was applying for a home loan.

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

The applicant entered active duty on 15 August 1978.  He completed basic combat training and advanced individual training with award of the military occupational specialty of 94B (Food Services Specialist).  The applicant was promoted to Specialist Fourth Class (SP4) on 1 December 1980.  This is the highest rank of record. 

Although there is no documentation on a 6 August 1981 NJP, the applicant’s Personnel Qualification Record (DD Form 2-1) shows he was reduced from SP4 to PFC on 6 August 1981, with a second promotion to SP4 on 1 March 1982.  There are no other documents in the record to confirm these promotions or the 1981 reduction.

On 19 July 1983, the applicant received non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice for two counts of failure to go to his place of duty, one count of failure to obey a lawful order, and one count of being incapacitated as a result of previous indulgence in intoxicating liquor.  The punishment imposed included reduction to private first class (PFC) (E-3).

The applicant was discharged under Army Regulation 635-200, chapter 13, for unsatisfactory performance on 20 August 1983 in pay grade E-3.

Army Regulation 600-200, at` paragraph 7-13, then in effect, stated that advancement to pay grade E-4 was not mandatory.  Commanders could, without constraint, advance service members who had completed 24 months time in service and 6 months time in grade.  

The policies and procedures governing the imposition of nonjudicial punishment are set out in title 10, United States Code, section 815 (Article 15, UCMJ), and in Army Regulation 27-10, chapter 3.  

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.  There is no indication that the applicant ever attained the rank of sergeant pay grade (E-5).  

2.  The NJP, which reduced the applicant to E-3, was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was not disproportionate to the offenses, and there is no evidence of any substantive violation of any of the applicant's rights.  

3.  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 this requirement.

4.  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

__RVO__  ___RJW_  __DPH__  DENY APPLICATION

	Carl W. S. Chun
	Director, Army Board for Correction
	of Military Records

INDEX

CASE ID	AR2002066749
	
SUFFIX		
RECON		
DATE BOARDED	20020409	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	A93.07	
3.		
4.		
5.		
6.