ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 May 2019 DOCKET NUMBER: AR20160015246 APPLICANT REQUESTS: restoration of his rank/grade to specialist (SPC)/E-4 and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show it. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 * Three letters FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his rank should be restored to E-4 on his DD Form 214. There is no documentation of a downgrade on his personnel file and there is no indication of a reduction in his records. He was unjustly and unfairly demoted based on incorrect facts and against the recommendation of the Judge Advocate General of an Article 15, Uniform Code of Military Justice (UCMJ). He was demoted prior to any hearings or proceedings. The incident was due to a supposed insubordination incident to one senior staff member. He was disciplined by multiple noncommissioned officers. However, there is no record of an Article 15 that could be located. 3. The applicant provides: a. Letter, dated 25 August 1999, from a captain who identifies himself as a rear detachment commander of the 235th Signal Company, Fort Gordon, GA. He sates the applicant was given a mission and he executed it with professionalism. b. Letter, undated, attesting to his treatment and character from a sergeant first class who states the applicant impressed her on numerous occasions due to his a. attention to details. Although he expressed frustrations with personnel in his work environment and had trouble with understanding military politics, and although she was not privy of his disciplinary actions he was facing, she thought he had great potential. c. Letter, from a sergeant who states the applicant was a Soldier of good character, who was dedicated, dependable, self-motivated, and caring. 4. Review of the applicant’s service records shows: a. He enlisted in the Regular Army on 22 January 1996. He served in Korea from 18 July 1996 to 17 July 1997. b. He was then assigned to Headquarters and Headquarters Company, 167th Signal Battalion, Fort Gordon. c. His DA Form 2-1 (Personnel Qualification Record) show she was advanced to private (PV2)/E-2 on 22 July 1996, private first class/E-3 on 1 January 1997, and SPC/E-4 on 1 April 1998. d. On 20 October 1999, Headquarters, U.S. Army Signal Center published Orders 293-0907, reassigning him to the Army Transition Point for separation processing effective 21 January 20000. The orders listed his rank as SPC. e. He was honorably released from active duty on 21 January 2000. His DD Form 214 shows he completed 4 years of active service. His DD Form 214 also shows in: * Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) – "PV2" and "E-2" * Item 12h (Effective Date of Pay Grade) – "1999-11-09" 5. By regulation (Army Regulation (AR) 600-8-104 (Army Military Human Resource Records Management), all UCMJ Article 15 documents and forms will be filed in accordance with AR 27-10 (Military Justice). No UCMJ Article 15 or supporting documents will be filed for E-4/CPL and below. For all other Soldiers, different instructions apply. 6. By regulation (AR 635-5), items 4a and 4b of the DD Form 214 show the active duty grade or rank and pay grade at the time of separation, and item 12f shows the effective date of the pay grade shown in item 4a. 7. By regulation (AR 15-185 (ABCMR)), the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body; the applicant has the burden of proving an error or injustice by a preponderance of the evidence (i.e. the weight of the evidence presented is greater than 50-50). 1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the statement of the applicant stating he was reduced and the regulatory guidance in AR 27-10 stating that no UCMJ Article 15 or supporting documents will be filed for E-4/CPL and below, the Board concluded that the applicant did obtain the rank of Specialist but prior to discharge was reduced to Private/E2. For that reason, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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. 5/14/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body; the applicant has the burden of proving an error or injustice by a preponderance of the evidence (i.e. the weight of the evidence presented is greater than 50-50; by contrast, criminal cases require a higher level of proof that is beyond a reasonable doubt, often interpreted to mean a more than a 95 to 99 percent chance of being correct). 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR. The AMHRR is an administrative record as well as the official permanent record of military service belonging to a Soldier. It remains in Army control for 62 years from a Soldier's final separation date and is transferred to the control of the National Archives and Records Administration (NARA) upon the 63rd year. The AMHRR is the historical and authoritative source for authentication of veteran or service-related benefits, entitlements, and services. The purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions. The DA Form 2627: All UCMJ Article 15 documents and forms will be filed in accordance with Army Regulation 27-10. No UCMJ Article 15 or supporting documents will be filed for E-4/CPL and below. For all other Soldiers, different instructions apply. 4. AR 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214. Chapter 2 contains guidance on the preparation of the DD Form 214 and states: * Items 4a and 4b show the active duty grade or rank and pay grade at the time of separation * Item 12f shows the effective date of the pay grade shown in item 4a