MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:     

		BOARD DATE:           30 October 2003                   
		DOCKET NUMBER:  AR2003089566

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis L. Greenway		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Larry C. Bergquist		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:  In effect, that the rank listed on his separation document (DD Form 214) be changed from private/E-1 (PV1) to specialist four (SP4).  

APPLICANT STATES:  In effect, that rank on his DD Form 214 indicates PV1; however, his discharge certificate lists his rank as SP4.  In support of his application, he provides a copy of his discharge certificate.  

COUNSEL CONTENDS:   In effect, that the applicant’s records are in error in that his DD Form 214 lists his rank as PV1 while his discharge certificate lists his rank as SP4.  

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

On 29 April 1980, he enlisted in the Regular Army and entered active duty.  He successfully completed basic training at Fort McClellan, Alabama and advanced individual training (AIT) at Fort Lee, Virginia.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist).

The applicant’s Personnel Qualification Record (DA Form 2-1) shows that he was promoted to SP4 in August 1981 and that this was the highest rank he attained while serving on active duty.  It also confirms that he was reduced to the rank of PV1 on 2 December 1982.  

On 6 October 1982, while serving in Germany, the applicant departed from his unit without authority and was placed in an absent without leave (AWOL) status.  He remained away until returning to military control on 9 October 1982.  

On 1 December 1982, after having refused punishment under Article 15 of the Uniform Code of Military Justice (UCMJ), the applicant was tried by summary court-martial.  He was found guilty of the charge of AWOL.  The resultant sentence included 30 days of confinement at hard labor, reduction to PV1, and forfeiture of $191.00.  

On 2 December 1982, the convening authority approved the sentence and ordered it to be duly executed.  The convening authority also directed that the applicant be confined at the United States Army Retraining Brigade (USARB), Fort Riley, Kansas.  

On 25 January 1983, the commander of the United States Army Correctional Activity (USACA), USARB, recommended that the applicant be separated under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance.  On 7 February 1983, the separation authority directed the applicant’s release from active duty (REFRAD) and transfer to the United States Army Reserve (USAR) with his term of service characterized as general, under honorable conditions.  

The DD Form 214 issued to the applicant confirms that he was separated under the provisions of chapter 13, Army Regulation 635-200, by reason of unsatisfactory performance.  This document also confirms that he held the rank of PV1 on the date of his REFRAD.  It also shows that at the time, he had completed a total of 2 years, 8 months, and 18 days of creditable active military service and he had accrued 23 days of time lost due to AWOL.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated). 

In support of his application, the applicant provides a copy of a discharge certificate issued to him upon the completion of his USAR commitment on 
28 April 1986.  This document lists his rank as SP4; however, there are no official documents that show the applicant was promoted back to this rank while he was in the USAR.  

Army Regulation 635-5 prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains item by item preparation instructions for the DD Form 214.  The instructions for Item 4a (Rank) contained in the separation documents regulation that was in effect at the time of the applicant’s separation stated, in effect, that the rank the member held at the time of separation as determined by using the Personnel Qualification Record (DA Form 2-1) would be entered in this item.  

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 contention that the rank listed on his DD Form 214 should be changed based on the rank listed on his discharge certificate was carefully considered.  However, the evidence of record confirms that the applicant was reduced from the rank of SP4 to the rank of PV1 on 2 December 1982, as a result of a summary court-martial sentence.  

2.  The evidence also confirms that the applicant still held the rank of PV1 on the date of his REFRAD and transfer to the USAR.  Further, he authenticated the 
DD Form 214 with his signature, thereby verifying that the information contained therein, to include his rank, was correct at the time the document was prepared and issued.  As a result, there is an insufficient evidentiary basis to change the rank currently entered on the DD Form 214 at this time.  

3.  The discharge certificate issued to the applicant upon the completion of his service obligation by the USAR lists his rank as SP4.  However, there are no orders or other documents on file that give any indication that this rank entry was valid and it is concluded that the rank was listed in error.  Given a correction to this document would not be favorable to the applicant, no change to the discharge document is being recommended.  

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 this 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

__CLG__  __EL___  __LB____    DENY APPLICATION

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

INDEX

CASE ID	AR2003089566	
SUFFIX		
RECON		
DATE BOARDED	2003/10/DD	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	1983/02/09	
DISCHARGE AUTHORITY	AR 635-200 C13	
DISCHARGE REASON	Unsatisfactory Performance 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  322	133.0000	
2.		
3.		
4.		
5.		
6.