IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150010249 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 29 September 2016 DOCKET NUMBER: AR20150010249 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________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. IN THE CASE OF: BOARD DATE: 29 September 2016 DOCKET NUMBER: AR20150010249 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 restoration of his rank/pay grade to specialist four (SP4/E-4). 2. The applicant states due to his service in Vietnam he suffered from post-traumatic stress disorder (PTSD); however, he was not treated then. He was wounded in combat and was awarded the Bronze Star Medal. The error in judgement he made does not depict the person he is. He is suffering from cancer and wants to be buried at Arlington National Cemetery with the brave Soldiers he served with. 3. The applicant provides documents from the Department of Veterans Affairs, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and email correspondence. 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. The applicant was inducted into the Army of the United States on 9 May 1967. Upon completion of his initial training he served in Vietnam from 24 October 1967 to 18 September 1968 and was awarded the Purple Heart (2nd Award) and Bronze Star Medal. The highest grade held was SP4/E-4. 3. On 16 December 1968, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for stealing a portable radio on or about 19 September 1968 and stealing another portable radio on or about 21 September 1968. At the time he was assigned to the Medical Holding Company at Fort Devens, MA. As punishment he was reduced to the rank/grade of private (PVT)/E-2. 4. Unit Order Number 61, issued by Medical Holding Company, Fort Devens, MA, dated 19 December 1968, shows he was reduced to PVT/E-2 due to misconduct effective 16 December 1968. 5. On 8 May 1969, he was honorably released from active duty. His DD Form 214 shows in: * Item 5a (Grade, Rate or Rank) – PV2 (P) * Item 5b (Pay Grade) – E-2 * Item 6 (Date of Rank) – 16 December 1968 6. He provides a printout of a Consults and Procedures Form issued by the Department of Veteran Affairs showing he was granted a 50 percent service connected disability rating for PTSD among other medical conditions. He was ultimately rated at 100 percent service connected disability for malignant neoplasms in his genitourinary system. REFERENCES: 1. Army Regulation 600-200 (Enlisted Personnel Management System) contained guidance at the time concerning Army-wide promotion policies. The Army wants to promote a Soldier who is qualified but also who is willing to return the promotion investment to the Army. For pay grades E-4 and below the company, troop, battery and separate detachment commanders may promote assigned personnel. Promotion of enlisted Soldiers in grade E-3 to E-9, appointments, grade reductions, and grade restoration will be announced in orders. The date of rank upon a reduction will be the effective date prescribed in the Article 15, normally its effective date of punishment imposition. To be advanced or promoted after reduction a Soldier must meet the applicable time in service and time in grade requirements for the next higher grade. For promotion to pay grade E-3, the normal time in service was 12 months and the time in grade criteria was 4 months. Promotion to pay grade E-3 is not mandatory. For promotion to pay grade E-4, the time in the lower pay grade of E-3 was 9 months and 3 years? time in service effective April 1969. The time in service and time in grade requirements were directed by Department of the Army and could fluctuate based on the needs of the Army. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends his rank should be restored because he was suffering from PTSD at the time of his Article 15. His PTSD based on service in Vietnam is not in question. However, the evidence is insufficient to determine whether his PTSD was the proximate cause of his misconduct (stealing property) which led to his reduction to PV2. 2. The Board begins its consideration of each case from a presumption of administrative regularity. It is assumed, unless proven otherwise by documents available in the record or provided by the applicant, that what the Army did was administratively correct and appropriate for the particular circumstance. In this case, other than a contention he had undiagnosed PTSD, he provides no evidence showing his rank is incorrectly shown on his DD Form 214. In fact unit orders reduced him to the rank of PV2 which is accurately shown on his DD Form 214. By regulation he was required to have 4 months’ time in grade as an E-2 for consideration to the grade of E-3. With 9 months? time in grade and 3 years of service required for permanent promotion to pay grade E-4 as of April 1969. It is clear the applicant did not meet the time in grade requirements for advancement or promotion to pay grade E-4, even if his unit commander had promoted him to pay grade E-3 at the minimum time in grade requirement of 4 months in April 1969. The applicant was discharged in May 1969 effectively stopping his eligibility for promotion consideration. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010249 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010249 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2