MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 July 2002
	DOCKET NUMBER:   AR2002072725

	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	
	Ms. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		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 he be paid back E-4 pay and allowances.

APPLICANT STATES:  That his E-4 rank was unjustly taken during basic training and when he was being discharged from the Army.  Supporting evidence is as listed on the DD Form 149.

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

He enlisted in the Regular Army on 17 November 1997 in the grade of E-4.  

The applicant’s Personnel Qualification Record part II, DA Form 2-1, shows his enlistment rank and grade of Specialist, E-4 with a date of rank of 17 November 1997.  The next entry shows his rank and grade as Private, E-1 with a date of rank of 13 January 1998.  His Personnel Qualification Record part I, DA Form 2A, dated 25 November 1998 shows his rank and grade as Private First Class, E-3 with a date of rank of 11 February 1998 with a written correction changing his rank to Private, E-2 (with no change to his date of rank but with 11 February 1998 lined through).  There are no Personnel Action forms, DA Form 4187, on file recording his reductions and/or later advancements.

On 7 December 1998, charges were preferred against the applicant charging him with several charges and/or specifications. The charge sheet refers to him as Private, E-2.

On 14 December 1998, the applicant requested discharge in lieu of trial by  court-martial.  He referred to himself and signed the request as Private, E-2.  On 21 December 1998, he requested withdrawal of his request for discharge.  He referred to himself as Private, E-2.  His chain of command variously recommended approval or disapproval of his request for discharge but all referred to him as Private, E-2.  The appropriate authority approved the request on 12 January 1999, referred to the applicant as Private, E-2, and directed that he be reduced to the lowest enlisted grade.

On 27 January 1999, the applicant was discharged with a discharge under other than honorable conditions.  His Certificate of Release or Discharge from Active Duty, DD Form 214, items 4a, 4b, and 12h showed his rank, grade, and date of rank to be Private, E-1 13 January 1998.  On 12 April 2000, his DD Form 214, item 12h was corrected to show his date of rank as 13 January 1999.

On 3 January 2001, the Army Discharge Review Board (ADRB) considered the applicant’s request to upgrade his discharge.  It noted that the highest grade he achieved was Specialist, E-4.  The ADRB recommended upgrading his discharge to a general discharge under honorable conditions and noted that the action entailed a restoration of grade to E-4.  As a result of the ADRB’s action, his DD Form 214 was re-issued with items 4a, 4b, and 12h reflecting his rank, grade, and date of rank as Specialist, E-4 17 November 1997.

Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  In pertinent part, it states that when the separation authority determines that a soldier is to be discharged from the Service under other than honorable conditions, the soldier will be reduced to the lowest enlisted grade.

Records at the Defense Finance and Accounting Service (DFAS) show the applicant was reduced to pay grade E-3 on 4 December 1997, reduced to pay grade E-2 on11 February 1998, and reduced to pay grade E-1 on 1 March 1998.
DFAS’s records also indicate that he had applied to them after the ADRB’s action for any due back pay and allowances.  DFAS paid him for 21.5 days of accrued leave but did not pay him any difference in pay and allowances between E-1 and E-4 since their records indicated he had been reduced to E-1 prior to his discharge. 

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.  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 and, in the absence of evidence to the contrary, the Board presumes that DFAS properly paid him all that was required after the ADRB upgraded his discharge.

2.  There is no evidence of record and the applicant provides none to show his rank of Specialist, E-4 was unjustly “taken” during basic training.  (Judging from the reduction rank DFAS’s records show, this may have been an administrative reduction.)  The evidence in his personnel records show that he was reduced in February 1998 to Private First Class, E-3 and on an unknown date to Private,    E-2.  He believed himself to be a Private, E-2 at the time he requested discharge in lieu of court-martial.

3.  Records at DFAS indicate the applicant was reduced to pay grade E-3 on       4 December 1997, reduced to pay grade E-2 on 11 February 1998, and reduced to pay grade E-1 on 1 March 1998 with no record of his being advanced to E-2 after that date.  

4.  It appears that the ADRB correctly noted that the highest grade achieved by the applicant was Specialist, E-4 but it appears that board erred when it noted that its action to upgrade his discharge entailed a restoration to grade E-4.  The ADRB’s action would have restored his grade (if higher than Private, E-1) to the grade he held on the day prior to the date of the approval of his request for discharge.  There was no evidence of record to support the reflecting of his rank and grade as Specialist, E-4 on his re-issued DD Form 214.

5.  The applicant’s personnel files are incomplete as they contain no DA Forms 4187 reflecting his reductions (or administrative reductions) and/or advancements.  Unless the applicant has evidence, such as DA Forms 4187 or leave and earnings statements, showing he was advanced in grade after his recorded reduction to Private, E-1 on 1 March 1998, DFAS’s records are considered the verifiable source of his promotion/reduction history.

6.  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

__FNE__  __MHM__  __DPH__  DENY APPLICATION

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

INDEX

CASE ID	AR2002072725	
SUFFIX		
RECON		
DATE BOARDED	2002/07/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.		
3.		
4.		
5.		
6.