ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 April 2021 DOCKET NUMBER: AR20210005883 APPLICANT REQUESTS: correction of her deceased husband's, a former service member (SM), DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 20 July 1961, 19 April 1962, 28 April 1964, and 22 October 1970 to show his correct ranks/grades from private/E-1 through sergeant first class/E-7. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * DA Form 20 (Enlisted Qualification Record), page 1 only * DD Forms 214 for the periods ending 20 July 1961 and 28 April 1964 * Death Certificate, 30 September 1994 * Department of Veterans Affairs (VA) Appeals Management Center Rating Decision, 27 April 2015 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 her late husband's rank/grade should be sergeant first class/ E-7. She is receiving benefits for the rank of private two/E-2. She is trying to get his get rank corrected on his DD Forms 214 in order to obtain the correct benefits. 3. The former SM enlisted in the Army National Guard on 3 October 1960. Item 11 (Grade) of his DD Form 4 (Enlistment Record – Armed Forces of the United States) shows his initial rank/grade as private/E-1. 4. The former SM completed his initial active duty for training on 20 July 1961 and was honorably released to the control of the West Virginia Army National Guard. He completed 6 months of net active service during this period. His DD Form 214 shows in: * item 3a (Grade, Rate, or Rank) – Private/E-2 (Permanent) * item 3b (Date of Rank) – 3 February 1961 5. On 15 October 1962, the former SM was recalled to active duty. He was honorably discharged on 19 April 1962. He completed 6 months and 5 days of net active service during this period. His DD Form 214 shows in: * item 3a (Grade, Rate, or Rank) – Private First Class/E-3 (Permanent) * item 3b (Date of Rank) – 1 October 1961 6. The former SM enlisted in the Regular Army on 20 April 1962. Item 11 (Grade) of his DD Form 4 shows his rank/grade as private first class/E-3 (temporary) and private/E-2 (permanent). 7. The former SM was honorably discharged on 28 April 1964 for immediate reenlistment. He completed 2 years and 9 days of net active service during this period. His DD Form 214 shows in: * item 3a (Grade, Rate, or Rank) – Specialist Four/E-4 (Temporary) * item 3b (Date of Rank) – 18 August 1963 8. The former SM reenlisted in the Regular Army on 29 April 1964. Item 11 (Grade) of his DD Form 4 shows as rank/grade as specialist four/E-4 (temporary) and private first class/E-3 (permanent). 9. Headquarters, 3rd Infantry Division, Special Orders Number 36, 5 February 1968, promoted the former SM to the rank/grade of sergeant/E-5 with a date of rank of 20 January 1968. 10. The former SM's records contain a DA Form 2627-2 (Record of Appellate or Other Supplementary Actions under Article 15, Uniform Code of Military Justice (UCMJ)), 5 February 1969, and Headquarters, 3rd Infantry Division, Special Orders Number 37, 7 February 1969, showing he received nonjudicial punishment under the provisions of Article 15, UCMJ, for misconduct. His punishment consisted of forfeiture of $142.00 pay per month for 2 months and reduction to the rank/grade of corporal/E-4. His appeal was denied. 11. The former SM's records contain a DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ), 24 July 1969, showing he received nonjudicial punishment under the provisions of Article 15, UCMJ, for being absent from his unit without proper authority on or about 1500 hours, 18 July 1969. He did not demand trial by court-martial or submit matters in extenuation, mitigation, or defense. His punishment consisted of 14 days of restriction and extra duty, and forfeiture of $74.00 pay per month for 1 month. He did not appeal and did not submit additional matters in his own behalf. His rank/grade is shown as corporal/E-4. 12. Headquarters, 3rd Infantry Division, Special Court-Martial Order 20, 4 August 1970, shows he was arraigned and tried pursuant to Court-Martial Convening Order Number 26, 9 June 1970 for the following charges: a. Charge I, violation of Article 134, specification: unlawfully killing another Soldier by culpable negligence by striking him with an automobile on or about 13 April 1970. b. Charge II, violation of Article 111, specification: on Wursburgerstrasse near the intersection of Spessart Strasse, operating a vehicle, to wit: a passenger car, in a reckless manner by driving at a speed in excess of 70 miles per hour in a heavily populated area and did thereby cause said vehicle striking and killing another Soldier on or about 13 April 1970. c. Additional Charge I, violation of Article 128: * specification 1: assaulting an individual by striking him in the face and stomach with his fists and by pushing him to the ground from a balcony on or about 1 June 1970 * specification 2: assaulting a noncommissioned officer, a person then having and in the execution of military police duties, by striking him in the head with his fists on or about 1 June 1970 d. Additional Charge II, violation of Article 134: (1) specification 1: wrongfully communicating a threat to a noncommissioned officer to injure him by breaking his back on or about 1 June 1970. (2) specification 2: having been duly restricted to the limits of Fiori Kasarna, Aschaffenburg, Germany, broking said restriction on or about 1 June 1970. e. He pled not guilty to all charges and specifications. f. Findings: (1) specification of charge I, guilty, except the words "by culpable negligence," substituting therefor, after the word "automobile," the words "in a negligent manner." Of the excepted words, not guilty; of the substituted words, guilty; (2) of charge I, not guilty, but guilty of violation of Article 134; (3) Of charge II and its specification, not guilty; (4) of specification 1 of additional charge I, guilty, except the word "stomach," and substituting therefor the word "chest," and except the words "and by pushing him to the ground from a balcony." Of the excepted words, not guilty. Of the substituted words, guilty; (5) of specification 2 of additional charge I, guilty; (6) of additional charge I guilty; (7) of specification 1 of additional charge II, not guilty; (8) of specification 2 of additional charge II, guilty; and (9) of additional charge II, guilty. g. His sentence consisted of reduction to private/E-1, forfeiture of $100.00 pay per month for 4 months, and confinement at hard labor for 4 months. No previous convictions were considered. h. His sentence was adjudged and approved on 26 June 1970. 13. Item 33 (Appointments and Reductions) of the former SM's DA Form 20 shows the last entry as reduction to private/E-1 with a date of rank of 4 August 1970 per Headquarters, 3d Infantry Division, Special Court Martial Order Number 20. 14. On 22 October 1970, the former SM was honorably discharged by reason of early release (student) under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). He completed 6 years, 1 month, and 22 days of net active service during this period with a total of 125 days of lost time. His DD Form 214 shows in: * item 5a (Grade, Rate, or Rank) – Private Two * item 5b (Pay Grade) – E-2 * item 6 (Date of Rank) – 6 October 1970 15. The former SM's records show the highest rank/grade he attained as sergeant/E-5 (temporary). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his military service record and documents provided by the applicant. The Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. Evidence in the records show the FSM received several UCMJ actions which resulted in rank reductions. Additionally, according to the records the promotions for the FSM were temporary. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XXX 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, 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 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. 2. 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 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. 3. Army Regulation 635-5 (Separation Documents), effective 1 February 1967, prescribed the separation documents which are prepared for individuals upon retirement, discharge, or release from active military duty. It established standardized policy for preparing and distributing the DD Form 214. The general instructions stated all available records would be used as a basis for the preparation of DD Form 214, including the DA Form 20 and orders. The specific instructions stated for: * item 5a (Grade, Rate, or Rank) – enter the grade in which serving at the time of separation, indicating whether permanent or temporary * item 5b (Pay Grade) – enter the pay grade * item 6 (Effective Date of Pay Grade) – enter the date of rank for the grade shown in item 5a //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210005883 7 1