IN THE CASE OF: BOARD DATE: 3 December 2021 DOCKET NUMBER: AR20210007376 APPLICANT REQUESTS: restoration of his rank to corporal/pay grade E-4. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Special Orders Number 48 dated 17 March 1954 * DD Form 214 (Report of Separation from the Armed Forces of the United States) for the period ending 25 June 1954 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States 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 in March 1954 he was a corporal and was serving as a squad leader in Korea. At the time he had a Korean soldier in his squad who was drunk and disorderly. The Korean soldier threated to kill himself with his gun. The applicant states it was his responsibility to disarm the Korean soldier and during the process of disarming him, he broke the Korean soldier’s arm. He was unaware he had broken the Korean soldier’s arm. In time, his lieutenant informed him he would go to a court-martial [for breaking the Korean soldier’s arm]. He states in effect his lieutenant seemed nice and he recommended to him that he plead guilty to the offense. After he pled guilty, he lost his corporal’s stripe and he was reduced to private first class (PFC)/pay grade E-3. To this day, he believes he was wronged by the lieutenant and that he should have received a medal for saving people’s lives (from potentially being killed) when he disarmed the drunken Korean soldier. When he returned to the continental United States with his unit, the soldiers in his unit received promotions. He did not get his rank restored. He now believes he should have been promoted to sergeant which would have meant a lot to him. Now recalling the loss of his rank, it still bothers him. He asks the Board to restore his rank to corporal/pay grade E-4. 3. The applicant’s record was presumed burned in the 1973 fire at the National Personnel Records Center (NPRC), part of the National Archives, located in St. Louis, Missouri. During the fire approximately 18 million service members’ records were burned and destroyed. The NPRC provided to the Board the applicant’s partial reconstructed military personnel record. 4. The applicant was inducted in the Army of the United States on 21 August 1952 in the rank and grade of private/pay grade E-1. He completed infantry training meeting their qualifications. His most significant duty assignment was to Company D, 160th Infantry Regiment and he served in Korea from on or about 13 April 1953 through on or about 14 June 1954. 5. A review of his DD Form 230 (Service Record) contains the following pertinent entries: a. Section 2 (Appointments, Promotions and Reductions) shows the following promotion and reduction history: * on 21 December 1952, advanced to private/pay grade E-2 * on 21 May 1953, temporarily promoted to private first class (PFC)/pay grade E-3 by Special Orders Number 107 issued by Headquarters (HQ), 160th Infantry Regiment * on 21 September 1953, temporarily promoted to corporal/pay grade E-4 by Special Orders Number 202 issued by HQ, 160th Infantry Regiment * on 17 March 1954, reduced to temporary PFC/E-3 by Special Orders Number 48 issued by HQ, 160th Infantry Regiment b. Section 12 (Time Lost) shows he had two periods of being absent without leave (AWOL) from on or about 23 January through 25 January 1953, a period of 3 days. His second period was from on or about 9 March through on or about 15 March 1953, a period of 6 days. c. Section 13 (Record of Trails by Courts-Martial) shows he was tried and found guilty for his first AWOL period from on about 22 January through 25 January 1953 by a summary court-martial. At the time he was stationed at Fort Ord, California. His sentence did not include a reduction in rank. 6. He provided and his personnel record contained a copy of Special Orders Number 48. The reason given for his reduction in grade to E-3 was because he received and accepted punishment under Article 15, Manual for Courts-Martial (1951). A copy of his Article 15 is not filed within his reconstructed personnel record. 7. On 25 June 1954 he was honorably released from active duty upon the completion of his required active service. He was released to the U.S. Army Reserve (USAR) and transferred to the USAR Nebraska Military District to complete his statutory service obligation. He was issued a DD Form 214 documenting his active service totaling 1 year, 9 months and 26 days. He had served 1 year, 2 months and 23 days of foreign service. The rank and grade shown on his DD Form 214 is temporary PFC with a date of rank of 17 March 1954. Item 32 (Remarks) contains information showing he had 9 days of lost time (AWOL) under section 6 (a), Appendix 2b, Manual for Courts-Martial (1951). 8. Army Regulation 624-200 (Promotions, Demotions, and Reductions of Enlisted Personnel), dated 1 July 1962, stated in effect the appeals processes governed by the provisions of Article 15, paragraph 135, Manual for Courts-Martial (1951) and Army Regulation 22-15 (Military Justice – Nonjudicial Punishment) were required by the Soldier. In general, a commanding officer may set aside the grade reduction upon a determination that, under all the circumstances of the case, the punishment resulted in a clear injustice. Whenever a reduction (or any other nonjudicial punishment) is set aside, all rights, privileges, and property including pay and allowance must be set aside and recorded on DA Form 2627-2 (Article 15, Uniform Code of Military Justice). BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Evidence of record shows the applicant was appointed to the rank of CPL temporarily. Prior to separation, the rank of CPL was removed and he was made a Private First Class, which is shown as his permanent rank. His separation document shows his permanent rank. Based upon a preponderance of the evidence, the Board determined there was no error or injustice in this case. In addition, the Board agreed this is not a case where an advancement to highest grade successfully held would apply, as the applicant was not retired. There is insufficient evidence to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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, United States 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 624-200 (Promotions, Demotions, and Reductions of Enlisted Personnel), dated 1 July 1962, prescribed the policies and procedures governing appointments and reductions of all enlisted personnel on active, other than active duty for training. a. General terms and with definitions included active duty was defined a full-time enlisted or officer duty in the Armed Forces of the United States. An appointment was defined as an administrative action effecting a change from one grade to another, either within the same pay grade or to a higher one. A reduction was a change to a lower pay grade with the reduction authority normally being a commander who had the authority to reduce personnel under his command. b. For appointment to pay grade E-3 and E-4, the company, troop, battery or separate detachment commanders were authorized to appoint enlisted personnel. A higher commander could restrict the exercise of appointment authority by a subordinate commander. c. Temporary appointments to all grades above E-3 and permanent appointment to E-3 were to be announced in orders issued by the appointing authority. Each order would state if the appointment was a temporary or permanent appointment and cite the regulation upon which the appointment was based. Appointments to a higher grade could not exceed the authorized HQDA quotas per grade. d. Temporary appointments were made against periodic temporary appointment quotas from HQ, Department of the Army (DA) (HQDA). For temporary appointment to grade E-4, a Soldier must have had 6 months’ time in grade as an E-3. Additional requirements included but were not limited to a recommendation by their commander, service in a military occupational specialty (MOS) in which appointments were authorized by HQDA, and serving in the pay grade next below that in which appointment was being made. e. The appeals processes governed by the provisions of Article 15, paragraph 135, Manual for Courts-Martial (1951) and Army Regulation 22-15 (Military Justice – Nonjudicial Punishment) were required by the Soldier. In general, a commanding officer may set aside the grade reduction upon a determination that, under all the circumstances of the case, the punishment resulted in a clear injustice. Whenever a reduction (or any other nonjudicial punishment) is set aside, all rights, privileges, and property including pay and allowance must be set aside and recorded on DA Form 2627-2 (Article 15, Uniform Code of Military Justice). 3. Special Regulation 615-360-1 (Separation of Enlisted Personnel), in effect at the time, established the procedures to be followed in the separation of enlisted personnel from active military service and described the proper method of execution and disposition of the various forms, records, and reports required. Paragraph 13 of this regulation provided for the preparation of the DD Form 214. This paragraph provided, in pertinent part, that the grade in which the individual was serving at the time of separation, whether the grade was permanent or temporary, and the date of appointment would be entered in Item 3 of the DD Form 214. 4. 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 regulation provides that 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007376 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1