IN THE CASE OF: BOARD DATE: 15 December 2022 DOCKET NUMBER: AR20220005638 APPLICANT REQUESTS: * Reinstatement of his rank to sergeant (SGT) * Payment of his accrued leave * A personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * 2 x DD Forms 149 (Application for Correction of Military Record) * medical records FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code (USC), 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 effect: a. He is requesting that he be given back his rank of SGT and that he be paid for accrued leave that he earned. b. He was given some unknown substance that caused him to go absent without leave (AWOL) and it was done by his commanding officer at Fort Jackson, SC, which should show in his service records. c. He only had a short time remaining in the military, and there was no way he would have gone AWOL without that unknown substance he consumed. d. Either the first lieutenant, who was the assistant adjutant, or his captain did this to him just weeks prior to him getting out of the Army. e. His records will speak for themselves. He had a job when he was drafted in December 1970. He was corpsman of the month twice and was up for the third time when he was promoted to SGT in 11 months. There was no way he would go AWOL and lose his rank and pay. f. The reduction ruined his life. He has not been able to hold down a job or a substantial job. 3. The applicant's service records contain the following documents for the Board's consideration: a. DD Form 4 (Enlistment Contract Armed Forces of the United States), which shows the applicant enlisted into the Regular Army on 14 December 1970 for a period of 3 years. On 9 December 1970, as part of his enlistment, the applicant received a SF 88 (Report of Medical Examination), which shows he had no medical conditions and was qualified for enlistment in the Army. SF 89 (Report of Medical History), dated 9 December 1970 shows he was in good health and had no medical conditions. b. DA Form 20 (Enlisted Qualification Record) shows in block 33 (Appointments and Reductions): * Private/E-1, 14 December 1970 * Private/E-2, 14 April 1971 * Private First Class (PFC), 30 April 1971 * Specialist Four (SP4)/E4, 23 July 1971 * Specialist Five/E-5, 1 May 1972 * SGT/E-5, 1 May 1972 * SP4, 13 June 1974 * PFC, 12 September 1974 c. Special Orders Number 280, published by Headquarters VII Corps Support Command, dated 6 October 1972, show the applicant was appointed/promoted to SGT/E-5, effective 21 September 1972 with a date of rank of 1 May 1972. These orders show he was appointed by the Commanding Officer, F Company, 2nd Battalion, 11th Armored Cavalry Regiment. d. DA Form 2166-4 (Enlisted Efficiency Report), dated 5 January 1973, shows the applicant should be promoted with contemporaries. e. A USAEEC Form 10 (Enlisted Evaluation Data Report) May 1973 shows the applicant was rated as low in weapons, mortars, and forward observer procedures and very low in fire direction center, tactics, and field activities. f. SF 600 (Chronological Record of Medical Care) shows the applicant was seen on: * 8 September 1973 stating someone had put something in his drink and he was given bed rest for 24 hours * 14 November 1973 for a hematoma on his lower right thorax * 21 February 1974 cold for six days * 26 February 1974 discharge from his penis * 16 December 1970 the optometry clinic g. DA Form 3072 (Request for Waiver of Disqualification for Enlistment/Reenlistment in the Regular Army for In-Service Personnel), dated 10 December 1973 shows the applicant was a SGT/E-5 with a date of rank of 1 May 1972. He enlisted on 14 December 1970 for a period of 3 years. His conduct and efficiency was rated as excellent from January 1971 to the date of the form. He had no Article 15s or civil court records. The applicant's chain of command recommended approval of the waiver and on 12 December 1973, the waiver was approved. h. DA Form 1695 (Oath of Extension of Enlistment) shows on 12 December 1973 the applicant voluntarily extended his enlistment of 3 years to 3 years and 9 months. i. DA Form 2627 (Record of Proceedings under Article 15 (Uniform Code of Military Justice (UCMJ)), dated 11 June 1974 shows the applicant accepted nonjudicial punishment (NJP) for failing to go to his appointed place of duty on 3 June 1974 and behaving with disrespect to a second lieutenant, his superior commissioned officer on 4 June 1974. His punishment included reduction to the rank of SP4, suspended for two months, and forfeiture of pay. j. On 30 July 1974, a first lieutenant (1LT) completed a certificate, which states, in effect: (1) At 0200, on 29 July 1974, the 1LT entered the Initial Receiving Point, Transfer Station, Fort Jackson, SC, for the purposes of conducting an unannounced inspection pursuant to his instructions. (2) Present in the room was one black male enlisted Soldier in fatigues, who identified himself as the Charge of Quarters (CQ) runner, and an unidentified black female in civilian clothes who was asleep on a makeshift couch. (3) When the 1LT asked for the CQ, the CQ runner directed him to a bed where the applicant was sound asleep in his khaki uniform. (4) After some effort, the 1LT awakened the applicant and asked about the status of the woman. He replied she was a civilian friend of his who had just arrived from Georgia. The 1LT instructed the applicant to immediately obtain lodging for the woman. k. DA Form 2496 (Disposition Form), dated 5 August 1974, shows the commander was requesting supplemental action in the form of vacation of the suspension of the reduction to SP4 imposed on the applicant on 13 June 1974. It had been reported the applicant failed to obey written instructions by sleeping on duty. The supplemental action was not available for the Board's consideration. l. Special Orders Number 160, published by Headquarters, U.S. Army Personnel Center, dated 15 August 1974, shows the applicant was reduced to the grade of SP4, effective 9 August 1974 with a date of rank of 13 June 1974 as a result of NJP. m. DA Form 2627 dated 5 September 1974, shows the applicant accepted NJP for being AWOL from on or about 22 August 1974 to on or about 3 September 1974. His punishment included reduction to the rank of PFC. He did not appeal his punishment. n. SF 88 dated 13 September 1974 shows the applicant had no medical issues and was qualified for separation. o. On 26 September 1974, the applicant completed a memorandum, subject: Optional Form for Explanation of Separation from Service, which shows the applicant neither requested nor declined explanation of the narrative reason for his separation from the U.S. Army. p. Special Orders Number 189, published by Headquarters, U.S. Army Personnel Center, dated 26 September 1974, shows the applicant was relieved from active duty and assigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement), effective 25 September 1974. q. On 26 September 1974, the applicant completed a Statement of Medical Condition, which states there was no change in his medical condition. r. DD Form 214 (Report of Separation from Active Duty) shows the applicant was honorably released from active duty on 26 September 1974. He completed 3 years and 9 months of net active service this period. The type of separation was relief from active duty. Item 6a (Grade, Rate or Rank) shows PFC. Item 21 (Time Lost) shows 13 days of lost time. Item 22 (Days Accrued Leave Paid) shows he was paid 11 days. s. On 23 February 1976, a letter to the applicant from the 988th Supply Company (Repair Parts), subject: Transfer to USAR Control Group, states records of the unit indicated the applicant had been absent from 28 unit training assemblies during the past twelve month period, which were unexcused. Because he failed to attend the required training, he was be transferred to an inactive control group. t. Orders Number 7-7, published by Headquarters, First United States Army, dated 12 July 1976 relieved the applicant from the 988th Supply Company and assigned him to the USAR Control Group (Standby), effective 1 June 1976. u. Orders Number 05-1069167, published by the Reserve Components Personnel and Administration Center, dated 11 May 1977 show the applicant was honorably discharged from the USAR Control Group (Standby) effective 13 December 1978 in the rank of PFC. 4. The applicant provides Department of Veteran Affairs medical documents, which show he was diagnosed with anxiety disorder. The complete medical records are available for the Board's consideration. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. The Board found the available evidence sufficient to consider this case fully and fairly without a personal appearance by the applicant. 2. The Board found insufficient evidence indicating the applicant’s reductions in grade from SGT to PFC were improper. The Board found the reductions to be warranted based on the applicant’s misconduct. Based on a preponderance of the evidence, the Board determined the rank/grade the applicant held at the time of his release from active duty and subsequent discharge from the USAR were not in error or unjust. 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 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 (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 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. 3. AR 27-10 (Military Justice), in effect at the time, provides that: a. Setting aside and restoration 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; b. NJP is wholly set aside when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual; c. The basis for any set aside action is a determination that, under all of the circumstances of the case, the punishment has resulted in a clear injustice; and d. In cases where administrative error results in incorrect entries on the DA Form 2627, the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment. 4. AR 635-5 (Separation Documents) in effect at the time prescribes the separation documents that are furnished individuals who are retired, discharged, or released from active military service. Source documents consist of all available documents. Item 6a, enter the grade and pay grade at the time of separation. Item 22, the information provided is required by other Federal agencies. 5. Title 31, USC, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005638 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1