BOARD DATE:	  27 March 2012

		DOCKET NUMBER:  AR20110017845 


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, in effect, correction of his DD Form 214 (Report of Separation from Active Duty) to show his rank as specialist four (SP4)/E-4 at the time of his discharge.

2.  He states he received nonjudicial punishment (NJP) on 6 September 1974 and his reduction to the rank of private first class (PFC)/E-3 was suspended for 30 days.  He should have been restored to the rank of SP4/E-4 on 6 November 1974.

3.  He provides a copy of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), dated 2 October 1974.

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.  He enlisted in the Army on 30 December 1972.  After completion of training, he served in military occupational specialty 95B (Military Policeman).

3.  The DA Form 2627 he provides shows he received NJP on 6 September 1974 for failing to obey a lawful general order on or about 4 September 1974.  The NJP imposed included, in part, reduction to the rank of PFC/E-3 which was suspended for 30 days.

4.  His record contains a second DA Form 2627, dated 2 November 1974.  This document shows he discharged a .45 caliber pistol through carelessness in a launcher control area of his unit on 27 October 1974.  He was reduced to the rank of PFC/E3.  He signed this form on 20 November 1974 indicating he did not appeal the NJP.

5.  The applicant's record shows Battery D, 2nd Battalion (Nike-Hercules) Air Defense Artillery, published Unit Orders Number 78 on 11 November 1974.  These orders indicate he was reduced to the rank of PFC/E-3 on 11 November 1974 due to misconduct.

6.  There is no indication in the available record that his reduction to PFC/E-3 on 11 November 1974 was suspended.

7.  On 6 December 1974, he was honorably released from active duty.  Item 6a (Grade, Rate, or Rank) and item 6b (Pay Grade) of his DD Form 214 show his rank/pay grade as PFC/E-3 with a date of rank (DOR) of 11 November 1974.

DISCUSSION AND CONCLUSIONS:

1.  The NJP the applicant received on 11 September 1974 shows his reduction to PFC/E-3 was suspended for 30 days.  However, on 2 November 1974 he was administered NJP for a separate offense and he was subsequently reduced to the rank of PFC/E-3 effective 11 November 1974.

2.  There appears to be no error or injustice in the grade and DOR shown on his DD Form 214.

3.  As such, there is no basis to grant the requested relief.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X__  ____X____  __X______  DENY APPLICATION

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.


ABCMR Record of Proceedings (cont)                                         AR20110017845



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ABCMR Record of Proceedings (cont)                                         AR20110017845



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