IN THE CASE OF: BOARD DATE: 3 December 2015 DOCKET NUMBER: AR20150005394 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 his military service records to show the rank/grade he held prior to being discharged. 2. The applicant states that his reduction in rank to private/pay grade E-1 was temporary and his rank should have been restored prior to him being discharged. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued on 17 July 1973. 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 enlisted in the Regular Army (RA) on 23 July 1970 for a period of 3 years. Upon completion of training he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic). He attained the rank of specialist four (SP4)/pay grade E-4 on 8 May 1971. 3. A DD Form 214 shows the applicant entered active duty this period on 23 July 1970 and he was honorably discharged on 27 May 1971 to reenlist in the RA. He had completed 10 months and 5 days of net service this period. It also shows in – * item 5a (Grade, Rate or Rank): "SP4" * item 5b (Pay Grade): "E-4" * item 6 (Date of Rank): 8 May 1971 4. He reenlisted in the RA on 28 May 1971 for a period of 6 years. 5. On 5 September 1972, the applicant was convicted by a special court-martial. The special court-martial convening authority approved the findings and recommendations on 18 September 1972. 6. A DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 18 May 1973, shows the company commander imposed nonjudicial punishment (NJP) against the applicant for (on two occasions) failing to go to his appointed place of duty. a. The applicant's punishment was reduction to private (PV1)/pay grade E-1 (suspended for 60 days), 14 days restriction, and 14 days extra duty. b. On 21 May 1973, the applicant indicated (with his initials and his signature) that he did not appeal the NJP. 7. On 26 May 1973, while on restriction, the applicant was arrested by civilian authorities and charged with being drunk and disorderly. 8. A DA Form 2627-2 (Record of Appellate or Other Supplementary Actions Under Article 15, UCMJ), shows the company commander indicated that the suspension of the punishment imposed on 21 May 1973 of reduction to PV1 (suspended for 60 days) was vacated and the unexecuted portion of the punishment was ordered duly executed. 9. Company B, 67th Signal Battalion, Fort Gordon, GA, Unit Order Number 28, dated 30 May 1973, ordered the reduction of the applicant from PV2 (E-2) to PV1 (E-1) for misconduct, effective 30 May 1973, with a date of rank (DOR) of 21 May 1973. 10. The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 33 (Appointments and Reductions – Format: Rank/Grade; DOR; Authority): PV1/E-1; 18 September 1972; Headquarters, School Brigade, U.S. Army Southeastern Signal School, Fort Gordon, GA, Special Court-Martial Order Number 136, dated 18 September 1972 PV2/E-2; 19 December 1972; Army Regulation 600-200, paragraph 7-19(c) PV1/E-1; 21 May 1973; Company B, 67th Signal Battalion, Fort Gordon, GA, Unit Order Number 28, 1973 11. On 10 July 1973, the discharge authority approved the commander's recommendation to discharge the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5b(2) (Character and Behavior Disorders). Accordingly, the applicant was discharged on 17 July 1973. 12. On 1 December 1976, Army Regulation 635-200 was revised. Thereafter, the type of discharge and the character of service was to be determined solely by the individual's military record during the current enlistment. In addition, any separation for unsuitability, based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry. In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated. It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders. A second memorandum, dated 8 February 1978, better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given. Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge. 13. On 25 October 2011, the applicant requested that his discharge be upgraded to fully honorable. The ABCMR, in Docket Number AR20110021584, dated 3 May 2012, corrected the applicant's military service records to show that he was honorably discharged on 17 July 1973. (His original DD Form 214 was voided and he was issued a new DD Form 214 on 27 June 2012.) 14 The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), reissued on 27 June 2012, shows he was honorably discharged on 17 July 1973. He had completed 2 years and 11 days of net active service this period and 10 months and 5 days of total prior active service. It also shows in – * item 4a (Grade, Rate or Rank): "PV1" * item 4b (Pay Grade): "E01" * item 12 (Record of Service), block i (Effective Date of Pay Grade): "1973 05 21" (21 May 1973) 15. Army Regulation 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It also establishes standardized policy for preparing and distributing the DD Form 214. a. The purpose of a separation document is to provide the individual with documentary evidence of their military service at the time of separation. Therefore, it is important the information entered thereon is complete and accurate as of that date. b. Chapter 2 contains guidance on the preparation of the DD Form 214. Table 2-1 (DD Form 214 Preparation Instructions) contains item-by-item instructions for completing the DD Form 214. The instructions show for: (1) item 4a and item 4b, enter the active duty grade of rank and pay grade at time of separation, and (2) item 12, block i, enter the effective date of pay grade. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his DD Form 214 should be corrected to show he was discharged in a rank/grade that he held prior to being discharged. 2. The evidence of record shows the applicant was promoted to SP4 (E-4) on 8 May 1971. The DD Form 214 that he was issued on 27 May 1971 (prior to his reenlistment in the RA) shows held the rank/grade of SP4/E-4 with a DOR of 8 May 1971. 3. Subsequent to his reenlistment and after being reduced to PV1 (E-1) as a result of a special court-martial, the applicant was advanced to PV2 (E-2) on 19 December 1972. 4. On 21 May 1973, the commander imposed NJP that included, in pertinent part, reduction to PV1/E-1 (suspended for 60 days). The applicant did not appeal the NJP. a. On 26 May 1973, just five days after imposition of the NJP, the applicant was arrested by civilian authorities and charged with being drunk and disorderly. b. The company commander took action to vacate the unexecuted portion of the punishment of reduction to PV1/E-1 (suspended for 60 days) and ordered it duly executed. c. Unit orders reduced the applicant to PV1/E-1 with a DOR of 21 May 1973. 5. There is no evidence of record that shows the applicant was advanced or promoted during the period 22 May 1973 through the date he was discharged. 6. The applicant's DD Form 214 shows he held the rank/grade of PV1/E-1 with a DOR of 21 May 1973. 7. Therefore, there is an insufficient evidentiary basis for correcting the entries in items 4a, 4b, and 12i of his 17 July 1973 DD Form 214. 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 that 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) AR20150005394 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005394 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1