BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016291 BOARD VOTE: ___x______ __x_____ __x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016291 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 amending his DD Form 214 for the period ending 23 July 1982 to show in: * Item 4a – PFC * Item 4b – E3 * Item 12h – 22 March 1982 __________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. BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20150016291 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 to the rank of private first class (PFC)/pay grade E-3. 2. The applicant states he was promoted to PFC before he received nonjudicial punishment (NJP), under the provisions Article 15 of the Uniform Code of Military Justice, but was never paid in that grade. A Judge Advocate General's (JAG) Corps major, who made it possible for him to receive an honorable discharge instead of a general discharge, told him a captain can only reduce a Soldier one pay grade not two. He believes he may have held a higher grade in the U.S. Army Reserve had he not been improperly reduced to E-1. He was a good Soldier until someone slipped him a huge dose of lysergic acid diethylamide. He states he now suffers from a schizo-affective disease, manic-depressive disorder combined with paranoid-schizophrenia. 3. The applicant provides copies of: * DA Form 4187 (Personnel Action), dated 18 March 1982 * Record of Proceedings Under Article 15, Uniform Code of Military Justice (NJP) * two DA Forms 2139 (Military Pay Voucher) * three DA Forms 3686 (Leave and Earnings Statement (LES)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 on 22 April 1981, completed training, and was awarded military occupational specialty 05C (Radio Teletype Operator). 3. On 2 July 1981, the applicant in the grade of E-1 accepted NJP for introducing marijuana into a unit. 4. An 18 March 1982 DA Form 4187, provided by the applicant, shows the applicant was recommended for advancement to pay grade E-3 effective 22 March 1982. This document is signed by a company grade officer. The applicant did not provide a final approval document. (This document is not filed in the applicant's official military personnel file.) 5. The applicant accepted NJP imposed by his company commander in the pay grade of O-3 (company grade) on 25 June 1982 for disobeying a lawful order on three occasions, disrespect toward a noncommissioned officer, dereliction of duty, and wrongful appropriation of a U.S. Government vehicle. His rank shown on the DA Form 2627 shows he was a private first class (pay grade E-3). His punishment included reduction to pay grade E-1. 6. The LESs provided by the applicant for March, May, and June 1982 shows he was paid in the grade of E-2. His military pay voucher dated 23 July 1982 that he also provided to the Board shows the Article 15, dated 25 June 1982, reduced him from pay grade E-2 to pay grade E-1. 7. On 8 July 1982, the applicant's command initiated separation proceedings under the Expeditions Discharge Program under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-31(h)(1) based on his inability to adapt to military life, evidenced by his social maladjustment and inability to accept instructions or directions. The separation authority approved the recommendation and directed issuance of a General Discharge Certificate. 8. The applicant was released from active duty on 23 July 1982, in pay grade E-1, under the provisions of Army Regulation 635-200 for failure to maintain acceptable standards for retention (Expeditious Discharge Program). He received a characterization of service of under honorable conditions (general). He was transferred to U.S. Army Reserve (USAR) Control Group (Annual Training). 9. The applicant was advanced to pay grade E-2 in the USAR on 18 March 1983 and discharged from the USAR in pay grade E-2 with an honorable discharge on 21 April 1987 upon the expiration of his statutory service obligation. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 5, as then in effect, provided for separations under the Expeditious Discharge Program. This program provided that a Soldier who had completed at least 6 months, but less than 36 months of active duty and who demonstrated (by poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally or failure to demonstrate promotion potential) that he could not or would not meet acceptable standards could be separated. Soldiers were issued a general or honorable discharge, as appropriate, except that a recommendation for a general discharge had to be initiated by the immediate commander and the individual had to consult with legal counsel. 2. Army Regulation 600-200 (Enlisted Personnel Management System), among other enlisted personnel functions, set forth the policies and procedures for promotions and reductions in grade. It states company, troop, battery, and separate detachment commanders were authorized to administratively reduce assigned Soldiers in pay grade E-4 and below. Appeals for reduction by reason of Article 15 or court-martial are governed by Army Regulation 27-10 (Legal Services – Military Justice). Restoration to a former grade may result from setting aside, mitigation, or suspension of NJP. 3. Army Regulation 27-10, in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial and the Rules for Courts-Martial. NJP is imposed to correct misconduct in violation of the UCMJ. It states that among the NJP maximum punishments for enlisted Soldiers imposed by a company grade officer is one grade reduction for pay grades E-1 through E-4. A field grade officer had the authority to reduce a Soldier in pay grade E-1 through E-4 by one or more grades 4. 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. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. During a period of Regular Army service, the applicant was advanced to pay grade E-3 on 22 March 1982 by his company commander. From the LESs and military pay vouchers the applicant provides it appears that his local finance office never processed the DA Form 4187 to show his pay grade as E-3. It is also noted this specific document is not filed in his personnel record. 2. On 25 June 1982, the applicant, apparently in the rank of private first class, accepted NJP imposed by his company grade (pay grade O-3) commander for disobeying a lawful order on three occasions, disrespect toward a noncommissioned officer, dereliction of duty, and wrongful appropriation of a U.S. Government vehicle. These are serious acts of misconduct that could have warranted trial by court-martial. His company commander imposed as part of his punishment reduction to pay grade E-1. At the time, the applicant did not appeal the imposed punishment. 3. A thorough review of the applicable regulations shows his company grade commander only had the authority to reduce enlisted Soldiers in pay grades E-4 and below by one grade. In the applicant’s case, the company commander appears to have violated the maximum authorized punishment for grade reduction per Army Regulation 27-10, if the Board accepts the validity of the DA Form 4187 that had, in effect, advanced the applicant to pay grade E-3. It must be noted that neither the applicant’s personnel records nor his finance records appear to have been updated based on the personnel action shown on the DA Form 4187. If the Board accepts the premise that his company commander exceeded his reduction authority, the Board will have a basis for recommending correction of the rank and grade shown on the applicant's DD Form 214 for the period ending 23 July 1982. 4. The Board may also presume administrative regularity based on the fact the DA Form 4187 is not filed in his personnel record and his finance record was not updated to show his pay grade as E-3. If the Board presumes administrative regularity, there will be no basis for recommending correction of the applicant's record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016291 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016291 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2