ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  26 September 2019

	DOCKET NUMBER:  AR20170001877


APPLICANT REQUESTS:  In effect, his pay grade be reinstated to specialist (SPC) from private first class (PFC).

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DA Form 4187-E (Personnel Action), 29 August 1994

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 he believes that his rank was reduced in error from SPC to PFC when he should have been reduced from corporal (CPL) to SPC as seen on documents in his official military personnel file.  The reduction in rank form used to reduce his rank from SPC to PFC clearly shows his rank to be CPL on the form.  He believes that he was not given proper credit for the noncommissioned officer position he held of CPL and was reduced in rank but should not have lost his SPC rank as well.  He believes this to be an injustice by his unit and just recently discovered that the form they used to demote him actually shows the rank and position he held as CPL.

3.  The applicant provides a DA Form 4187-E, dated 29 August 1994 that shows he was a CPL, reduced from SPC to PFC effective 29 August 1994.

4.  A review of the applicant’s service records shows the following:

	a.  He enlisted in the Regular Army on 11 July 1989.

	b.  The applicant’s record is void of non-judicial punishment (NJP).

	c.  DA Form 4187 shows he was a CPL/E-4 reduced from SPC/E-4 to PFC/E-3 effective 29 August 1994.

	d.  DA Form 4126-R (Bar to Reenlistment Certificate), dated 17 January 1995 shows he received NJP on 31 August 1994 for failure to follow orders and was reduced to the grade E3 (PFC).  This action was predicated by the applicant’s misconduct.  He had not demonstrated potential for future military service.

	e.  On 21 February 1995, he was honorably released from active duty by reason of non-retention on active duty.  Block 4a (Grade, Rate or Rank) shows PFC and block 4b (Pay Grade) shows E3.

5.  By regulation:

	a.  AR 27-10 prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  Paragraph 3-8e addresses reduction in grade:  promotion authority, the grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction.  

	b.  AR 635-5 (Separation Documents - Personnel Separations) for items 4a and 4b, enter active duty grade of rank and pay grade at time of separation.

	c.  AR 600-8-19 (Enlisted Promotion and Reduction) prescribes the enlisted promotions and reductions function of the military personnel system.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief was not warranted.  Based upon the documentary evidence provided by the applicant and found within the military service record, the Board noted that he received an Article 15 that reduced him from E-4/CPL to E-3/PFC.  Additionally, the Board also noted that he applicant signed a documents before his separation and wrote PFC.  The record clearly shows he was reduced to E-3 (PFC) and he held this rank/pay grade at the time of separation. 

  
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.

	 
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.  Army Regulation (AR) 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to non-judicial punishment (NJP) under the Uniform Code of Military Justice.  Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	a.  Paragraph 3-8e.  Reduction in grade.  Promotion authority. The grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction. For the purposes of this regulation, a commanding officer has "promotion authority," within the meaning of Article 15(b), if he has the general authority to appoint to the grade from which reduced or any higher grade.

	b.  Paragraph 3-17 suspensions.  Ordinarily, the purpose of suspending punishment will be to grant to a deserving member a probational period during which he may show that he is deserving of remission of the suspended portion of his non-judicial punishment.  If, because of further misconduct by the member within this period, it is determined that remission of the suspended punishment is not warranted, the suspension may be vacated and the suspended portion of the punishment executed.  Action vacating a suspension will be recorded in accordance with notes 10 and 11, Part III, DA Form 2627 (Record of Proceedings).  Unless the suspension is vacated prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action.

	c.  Paragraph 3-20 describes setting aside and restorations.  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.

	d.  Paragraph 3-21 limitations with respect to reduction in grade.  An unsuspended reduction in grade, imposed as NJP, becomes fully executed at the time it is imposed.  Accordingly, there can be no remission of an unsuspended reduction.

	e.  Paragraph 3-22 who may act on an appeal.  An appeal under Article 15 will be acted upon by the authority next superior to the officer who imposed the punishment if the person punished is still of the command of that officer at the time he appeals, but if the punishment has been imposed under a delegation of the superior's power to impose NJP (see para 128, MCM, 1969) the appeal will be acted upon by the authority next superior to him.

3.  635-5 (Separation Documents - Personnel Separations), in effect at the time, sets forth the procedures for individuals upon retirement, discharge, or release from active duty.  It states in Table 2-1 (DD Form 214 (Certificate of Release or Discharge from Active Duty) Preparation Instructions) for items 4a (Grade, Rate or Rank) and 4b (Pay Grade), enter active duty grade of rank and pay grade at time of separation.

4.  AR 600-8-19 (Enlisted Promotion and Reduction) prescribes the enlisted promotions and reductions function of the military personnel system.  Paragraph 7-1 (promotion or reduction transactions) b(2) states the unit PAC (Personnel and Administration Center) is responsible for submitting grade change transactions on Soldiers (private 2) PV2 through (corporal) CPL or (specialist) SPC.

ABCMR Record of Proceedings (cont)	 AR20170001877


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