IN THE CASE OF: BOARD DATE: 24 August 2023 DOCKET NUMBER: AR20230000542 APPLICANT REQUESTS: restoration of his rank and applicable back pay and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) 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 pertinent part, he would like his rank restored and correction of all applicable back pay as he was discharged without pay. 3. A review of the applicant's available service record reflects the following: a. On 16 August 1968 he was inducted into the Army of the United States. b. DA Form 20 (Enlisted Qualification Record) item 33 (Appointments and Reductions) reflects: * Private (PVT)/E-1 Permanent (P), effective 16 August 1968 * Private (PV2)/E-2 (P), effective 6 November 1968 * Specialist Four (SP4) (T) (Temporary)/E-4, effective 24 January 1969 * PVT/E-1, effective 9 September 1970 c. On 24 January 1969, the U.S. Army Quartermaster School Brigade issued Special Orders Number 16 promoting him to the temporary rank of SP4. d. On 16 July 1970, the applicant accepted non-judicial punishment under the provisions of Article 15 Uniform Code of Military Justice (UCMJ) for violating Article 86 UCMJ (Failure to go to an appointed place of duty) for failure to go at the prescribed time to his appointed place of duty. His punishment was restriction and extra duty. e. On 9 September 1970, Headquarters Pacific Area Installation Command issued Summary Court-Martial Order Number 44 which shows the applicant was charged with violating the following: (1) Charge 1 - Violation of UCMJ Article 90 (Willfully disobeying a superior commissioned officer). * Specification 1: he received a lawful command from Captain (CPT) G- A-, Commanding Officer of Headquarters Company, to stop while passing through the company area, on or about 1430 hours, 13 August 1970, did willfully disobey the same * Specification 2: he received a lawful command from CPT G- A-, to report to him at 1000 hours on 12 August 1970, did willfully disobey the same (2) Charge 2 - Violation of UCMJ Article 89 (Disrespect toward a superior commissioned officer) Specification: he behaved himself with disrespect toward CPT G- A-, on or about 1430 hours 13 August 1970, by saying "F*** you Sir" or words to that effect in Spanish and by contemptuously turning from him and waiving his hands while CPT G- A- was talking to him. (3) Charge 3- Violation of UCMJ Article 134 (Conduct that is prejudicial to good order and discipline is conduct that causes a reasonably direct and palpable injury to good order and discipline) Specification: he wrongfully communicated to CPT G- A-, on or about 1500 hours 14 August 1970, a threat, to wit: "One of these days you will go to Puerto Rico and I am going to kill you. You are a coward. I know where your family resides and I will injure a member of your family," or words to that effect in Spanish. (4) Found guilty of Charge 1, specification 1, and charge 3; and sentenced to 14 days of hard labor and reduction in rank to PVT/E-1 with a retroactive effective date of 1 September 1970. f. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending 11 September 1970 reflects an honorable release from active duty by reason of expiration term of service and transfer to the U.S. Army Reserve Control Group (Reinforcement). Item 5a (Grade, Rate or Rank) shows private (PV2)/E-2 and item 6 (Date of Rank) shows 11 September 1970. Item 22 (Statement of Service) shows a net active service this period of 2 years, 11 months, and 28 days. g. On 15 September 1970, the United States Army Forces Southern Command issued Special Orders Number 223 changing his rank from SP4 to private (PV1)/E-1 with a retroactive effective date of 10 September 1970. 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. 2. The Board found the applicant engaged in a pattern of misconduct that led to his sentence to be reduced to the lowest enlisted paygrade. In view of the seriousness of the misconduct, the Board found the reduction in grade to be warranted. The Board determined the grade the applicant held at the time of his separation was not in error or unjust. 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, 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) 635-5 (Separation Documents) in effect at the time prescribes the separation documents that will be furnished each individual who is separated from the Army. Source documents will consist of DA Form 20. Item 5a; enter the grade in which serving at the time of separation, indicating whether permanent or temporary. Item 30; if grade as shown in item 5 is not permanent, enter permanent grade, date of appointment, and date of rank if different from date of appointment. Item 6; enter the date of rank for the rank shown in item 5a. 3. AR 15-185 (Army Board for Correction of Military Records (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. It states in paragraph 2-9, 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230000542 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1