IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110004328 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of item 5a (Grade, Rate or Rank), item 5b (Pay Grade), and item 6 (Date of Rank) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states:

* 91 days prior to his discharge he received an Article 15 and a suspended reduction from specialist four (SP4)/E-4 to private first class (PFC)/E-3
* he regained the rank/pay grade of SP4/E-4 the day before his discharge, but it was not entered on his DD Form 214

3.  The applicant provides:

* DD Form 214
* DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  His entire military records covering the period 26 June 1968 to 25 June 1970 are not available for review.

3.  His induction record shows he was inducted into the Army of the United States on 26 June 1968.  His DD Form 214 shows he served as a communications center specialist in Vietnam from 7 December 1968 to 6 December 1969.  On an unknown date, he attained the rank of SP4/E-4.

4.  On 24 March 1970, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty on 20 March 1970.  The DA Form 2627-1 shows his rank/pay grade as SP4/E-4.  His punishment consisted of a reduction from E-4 to E-3 (suspended for a period of 90 days).

5.  His DD Form 214 shows he was released from active duty on 25 June 1970 and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.

6.  His DD Form 214 shows in:

* item 5a – "PFC"
* item 5b – "E3"
* item 6 (Date of Rank) – "23 Mar 70" [23 March 1970]

7.  There is no evidence that shows his suspended reduction to E-3 was vacated.

8.  His discharge orders, dated 22 June 1970, show his rank as SP4.

DISCUSSION AND CONCLUSIONS:

1.  His discharge orders, dated 22 June 1970, which show his rank as SP4 support his contention that held the rank of SP4 prior to his discharge.

2.  Since there is no evidence his suspended reduction to E-3 was vacated, it appears his reduction never occurred and his original date of rank (DOR) for SP4 should be reflected on his DD Form 214.  However, his original DOR for SP4 is not available.  As a result, the available evidence which shows he was serving in the rank of SP4 on 20 March 1970, the date of his misconduct, is accepted as sufficient evidence with which to amend items 5a, 5b, and 6 of his DD Form 214 to show his rank/pay grade as SP4/E-4 and DOR as 20 March 1970 at a minimum.

BOARD VOTE:

___X____  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting the entry from item 5a of his DD Form 214 and replacing it with the entry "SP4,"

	b.  deleting the entry from item 5b of his DD Form 214 and replacing it with the entry "E-4," and

	c.  deleting the entry from item 6 of his DD Form 214 and replacing it with the entry "20 Mar 70" [20 March 1970.]



      ____________X_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110004328



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ABCMR Record of Proceedings (cont)                                         AR20110004328



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