ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  21 August 2019

	DOCKET NUMBER:  AR20180013861


APPLICANT REQUESTS: 

* his records corrected to show he retired as a Staff Sergeant (SSG)/E-6
* personal Board appearance

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 should be retired as a SSG and not a sergeant (SGT)/E-5.

3.  The applicant provides a DD Form 214, dated 8 September 1983, which shows he was discharged in the rank of SSG under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 4 (Expiration Term of Service) with an honorable characterization of service.

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

	a.  His records are void enlistment documentation prior to 1978.  He enlisted in to the Regular Army (RA) on 11 August 1978. 

	b. He was discharged under the provisions of Army Regulation 635-200, Chapter 4 on 8 September 1983 with an honorable characterization of service.  He was discharged in the rank of SSG/E-6.

	c.  He enlisted in to the RA on 3 December 1986 in the rank of Private First Class (PFC)/E-3.

	d.  He was discharged on 21 November 1989 for immediate reenlistment.  He reenlisted on 22 November 1989 in to the RA.

	e.  He served in:

* Korea
* 11 June 1974 to 10 July 1975
* 7 December 1976 to 6 December 1977
* 2 January 1979 to 30 October 1980
* 15 June 1982 to 8 September 1983
* Germany from 18 December 1990 to 14 December 1993
* Haiti from 24 September 1994 to 12 November 1994

	f.  On 30 May 1989, he received orders promoting him from Corporal to Sergeant.  The promotion under orders number 102-55 was effective 1 June 1989.

	g.  On 11 May 1995, orders number 131-00213, released him from active duty and placed on the retired list.  The orders also reflected:

* Voluntary Retirement: ·20 years, 0 months, and 5 days
* Basic Pay:  22 years, 4 months, and 15 days
* Effective Date:  31 January 1996
* Retired Grade of Rank:  SGT
* Date Placed On Retired List:  1 February 1996

	h. On 15 December 1995, orders number 131-00213 were amended to reflect:

* Voluntary Retirement:  20 years, 0 months, and 26 days
* Basic Pay:  23 years, 3 months, and 20 days
* Effective Date:  29 February 1996
* Retired Grade of Rank:  SSG
* Date placed on retired list:  1 March 1996

	i.  His DD Form 214, reflects he was retired on 29 February 1996, under the provisions of AR 635-200, chapter 12 with an honorable characterization of service.

5.  The DD Form 214 is a summary of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of all current active, prior active, and prior inactive duty service at the time of release from active duty, retirement, or discharge.  The information entered thereon reflects the conditions as they existed at the time of separation.

6.  By regulation, AR 635-8 (Separation Processing and Documents), currently in effect, on direction of the ABCMR or Army Discharge Review Board, or in other instances when appropriate, the Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)), Army Review Boards Agency (ARBA), is authorized to issue or reissue DD Forms 214.  Once a DD Form 214 has been issued, it will not be reissued except under specified circumstances including when it is determined that the original DD Form 214 cannot be properly corrected by issuance of a DD Form 215 (Correction to DD Form 214).

7.  By regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  

BOARD DISCUSSION:

The applicant's request for a personal appearance hearing was carefully considered.  In this case, the evidence of record was sufficient to render a fair and equitable decision.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

After reviewing the application and all supporting documents, the Board found relief was warranted.  The applicant’s contentions were carefully considered.  An amendment to his separation orders show his rank was amended to read SSG upon his retirement; however, his DD Form 214 shows SGT.  The Board agreed the amendment is sufficient evidence to grant relief.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

X	X	X	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

:	:	:	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 29 February 1996 by showing:

 * Block 4a. – SSG
 * Block 4b. – E6
 * Block 12h. – 1996 02 29
	 
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) 635-5 (Personnel Separations – Separation Documents), prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.

3.  AR 635–200 (Personnel Separations - Active Duty Enlisted Administrative Separations), sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of soldiers for a variety of reasons.  Readiness is promoted by maintaining high standards of conduct and performance.

4.  AR 635-8 (Separation Processing and Documents), currently in effect, prescribes the transition processing function of the military personnel system, including preparation of the DD Form 214.  


5.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  

   a.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

   b.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.  Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

6.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence.  BCM/NRs may grant clemency regardless of the type of court-martial.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. Army Regulation (AR) 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180013861


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