ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 8 July 2019 DOCKET NUMBER: AR20190002918 APPLICANT REQUESTS: Correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect his rank as Specialist-Four (SP4)/ E-4, instead of Private First Class (PFC)/ E-3. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) * Letter of Reprimand 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 The applicant states, in effect, his rank/ pay grade was reduced from E-4 to E-3 by an Article 15 which was withdrawn by a letter of reprimand. The Article 15 was dated in March of 1980, and the letter of reprimand was dated in May of 1980. His rank should be returned to E-4 effective 5 May 1980. 3. The applicant provides: * DA Form 2627 (Record of Proceedings under Article 15, (UCMJ), wherein the applicant received nonjudicial punishment under provisions of Article 15 and was reduced to the grade of E-3, which was suspended for 90 days * letter of reprimand wherein his Company Commander stated he was withdrawing the previous Article 15 and administering this letter, and recommending it be placed in his individual Military Personnel Record Jacket (201 file) for a period of 180 days 4. A DA Form 2627 placed in the applicant’s records shows in Part III – Attachments and/or Comments that on 15 April 1980, the suspension for the punishment of reduction in rank to the grade of E-3 was vacated. This vacation of the reduction took place prior to the issuance of the written reprimand by his Commander. The document was not signed or acknowledged by the applicant. 5. On 5 May 1980, in a written reprimand, the applicant’s Commander addressed the applicant by the rank of PFC. In the fifth paragraph, the commanding officer states that he wanted the applicant to understand that the letter [of reprimand] had been imposed as an administrative measure and not as punishment under Article 15, UCMJ. The Commander made the recommendation to the Brigade Commander to place the letter in the applicant’s 201 file for 180 days. The Brigade Commander approved the recommendation. 6. A review of the applicant’s service records shows the following: * DA Form 2-1 (Personnel Qualification Record – Part II) shows in item 18 (Appointments and Reductions) his reduction to PFC, with a date of rank of 20 March 1980 * DD Form 214 for the period ending on 5 December 1980, which shows he was honorably released from active duty, and in items 4a and b, his rank is listed as “PFC E3” 7. Please see applicable references below. BOARD DISCUSSION: After review of the application and all evidence, the Board determined that there is sufficient evidence to grant relief. The applicant provided a memorandum of reprimand that rescinded the Article 15 that reduced the applicant’s rank from SP4/E-4 to PFC/E3. Furthermore, the signed copy of the Article 15, that would have vacated the suspended reduction in rank to reduce the applicant from SP4/E-4 to PFC/E-3, does not have the vacated portion filled out and signed. Therefore, the Board found that the applicant’s DD Form 214 discharge certificate should be amended to show the applicant’s rank as SP4/E-4. 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 Army records of the individual concerned be corrected by amending his DD Form 214, dated 5 December 1980, as follows: * correct item 4a (Grade, Rate or Rank) to show “SP4” vice “PFC”, and * correct 4b (Pay Grade) to show “E-4” vice “E-3” 12/16/2019 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. ADMINISTRATIVE NOTE(S): Not Applicable 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) explains the use of nonjudicial punishment, as stating that a commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment (para 1d(1), Part V, MCM). a. When punishments set forth in an Article 15 proceedings are suspended, it is ordinarily suspended to grant a probational period during which a member may show that he or she deserves a remission of the remaining, suspended, punishment. An executed punishment of reduction or forfeiture may be suspended only within a period of 4 months after the date imposed. Suspension of punishment may not be for a period longer than 6 months from the suspension date. Further misconduct by the member, within the period of the suspension, may be grounds for vacation of the suspended portion of the punishment (para 3-25). b. A commander may vacate any suspended punishment, (para 6a(4), Part V, MCM), provided the punishment is of the type and amount he or she could impose and where the commander has determined that the member has committed misconduct (amounting to an offense under-the UCMJ) during the suspension period. The commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, he or she reasonably believes to be relevant to the misconduct. There is no appeal from a decision to vacate a suspension. Unless the vacation is prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action. Commanders will observe the following procedures in determining whether to vacate suspended punishments: (1) If the suspended punishments of the kind set forth in Article 15e(1-7), the member should, unless impracticable, be given an opportunity to appear before the officer authorized to vacate the suspension to rebut the information on which the proposed vacation is based. (2) In cases involving punishments not set forth in Article 15(e)(1-7.) the member will be informed of the basis of the proposed vacation and should be given an opportunity to respond, either orally or in writing. (3) The following will be recorded according to notes 11 and 12, DA Form 2627, notes 9 and 10, DA Form 2627-1, or DA Form 2627-2 (para 3-38b): (a) Action vacating a suspension, to include the basis for vacation. (b) Whether or not the member appeared or was otherwise provided an opportunity to respond. (c) An explanation, if the member did not appear, in a case involving vacation of a suspended punishment listed in Article 15(e)(l) through. (7), or in other cases, if the member was not provided an opportunity to respond. (d) Failure to provide notification and an opportunity to appear or to otherwise respond to the basis of a proposed vacation may result in the record of punishment being inadmissible in a subsequent court-martial, but will not, by itself, render a vacation action void. //NOTHING FOLLOWS//