IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150005172 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150005172 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. __________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. IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150005172 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he was separated in the rank/grade of specialist four (SP4)/E-4, the highest grade he held during his period of active military service. 2. The applicant states he joined the Army at sixteen and a half years old. After basic training and advanced individual training, he was sent to the Republic of Vietnam, where he was shot in the back of the head and through his right arm. He suffered a traumatic brain injury (TBI) that left him with post-traumatic stress disorder (PTSD); as a result, he started going absent without leave (AWOL). His service was spotless before he was wounded in Vietnam. After going AWOL, he was demoted to the rank/grade of private/E-1. He was a homeless veteran when he got out of the Army. 3. The applicant provides a copy of his DD Form 214. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 20 September 1968. On the date of his enlistment, he was one month from his 18th birthday. He entered active duty, completed his initial entry training, and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). Later, he was awarded MOS 64B (Heavy Vehicle Driver). 3. The applicant served in the Republic of Vietnam, where on 24 February 1969, he was assigned to Company A, 5th Battalion, 12th Infantry Regiment, 199th Infantry Brigade. 4. The applicant accepted nonjudicial punishment (NJP) on 8 May 1969, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for sleeping at his post on or about 1 May 1969. 5. The applicant was promoted to the rank/grade of SP4/E-4 on 15 August 1969. 6. He sustained fragmentary wounds to his arms and neck on 20 August 1969. He was medically evacuated and was assigned to the Medical Holding Company, 106th General Hospital, Yokohama, Japan, in a patient status. 7. On an unknown date and for an unknown reason, he was reduced in rank/grade from SP4/E-4 to private first class (PFC)/E-3. 8. The applicant accepted NJP under the provisions of Article 15 of the UCMJ on the following dates for the following offenses: a. On 15 September 1969, for absenting himself from his place of duty from on or about 14 September 1969 to on or about 15 September 1969. His punishment included his reduction from the rank/grade of PFC/E-3 to private (PV2)/E-2. b. On 29 September 1969, for absenting himself from his place of duty from on or about 26 September 1969 to on or about 27 September 1969, and again from on or about 27 September 1969 to on or about 28 September 1969. His punishment included his reduction from the rank/grade of PV2/E-2 to private (PVT)/E-1. c. On 3 October 1969, for absenting himself from his place of duty from on or about 2 October 1969 to on or about 3 October 1969. The corresponding DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) shows his rank/grade as PVT/E-1. 9. Before a summary court-martial at the 106th General Hospital on 14 October 1969, the applicant was convicted of absenting himself from his place of duty from on or about 4 October 1969 to on or about 5 October 1969. 10. The applicant accepted NJP under the provisions of Article 15 of the UCMJ on 8 December 1969 for absenting himself from his unit (AWOL) from on or about 1 December 1969 to on or about 8 December 1969. The corresponding DA Form 2627-1 shows his rank/grade as SP4/E-4. 11. He was reassigned to the 126th Transportation Company, Fort Bragg, NC, on 12 December 1969. 12. Based on a review of his records, it appears some or all of the rank/grade reductions that were ordered in his NJPs may have been suspended. His record contains documents, dated between September and December 1969, which show his rank as PVT, PV2, PFC, and SP4; however, his rank is not shown in descending order as depicted in the chronology of his NJP actions. 13. Before a summary court-martial at Fort Bragg, NC, on 28 May 1970, the applicant was convicted of absenting himself from his unit from on or about 19 May 1970 to on or about 27 May 1970. His rank/grade at the time was SP4/E-4; however, his punishment included reduction to the rank/grade of PVT/E-1. 14. Before a summary court-martial at Fort Bragg, NC, on 19 August 1970, the applicant was convicted of a single specification of Charge I (for violating Article 86 of the UCMJ); specifically, he was convicted of absenting himself from his unit from on or about 13 July 1970 to on or about 12 August 1970. His rank/grade at the time was PV2/E-2; however, his punishment included reduction to the rank/grade of PVT/E-1 (emphasis added). 15. Special Orders Number 269, issued by Headquarters, XVIII Airborne Corps and Fort Bragg on 3 December 1970, ordered his release from active duty on 6 December 1970. These orders show his rank/grade as PVT/E-1. 16. The applicant was honorably released from active duty on 6 December 1970 and transferred to the U.S. Army Reserve the following day. His DD Form 214 shows he was released from active duty in the rank/grade of PVT/E-1. His DD Form 214 further shows numerous periods of lost time totaling 78 days. 17. The applicant's record is void of any documentation that shows he was diagnosed with PTSD at any time, either during or after his period of active military service. Additionally, he did not provide evidence that substantiates his contention that his misconduct resulted from PTSD or other mental health issues. By letter, an Army Review Boards Agency staff member requested the applicant provide documentation that shows he was diagnosed with PTSD or a TBI; however, he did not respond. REFERENCES: 1. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM). This regulation provides that: a. Non-punitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies. These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment. Included among non-punitive measures are denial of pass or other privileges, counseling, administrative reduction in grade, administrative reprimands and admonitions, extra training, bar to reenlistment, and MOS reclassification. Commanders should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. b. NJP is imposed to correct misconduct in violation of the UCMJ. Such conduct may result from intentional disregard for or failure to comply with prescribed standards of military conduct. NJP is used to correct, educate, and reform offenders who have shown they cannot benefit from less stringent measures. The use of NJP is considered proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. c. NJP is intended to preserve a Soldier’s record of service from any unnecessary stigma accompanying a record of court-martial conviction and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. Prompt action is essential for NJP to have the proper corrective effect. 2. Army Regulation 600-200 (Enlisted Personnel Management System), in effect at the time, established promotion policies relating to the advancement, promotion, appointment, and reduction of all enlisted personnel on active duty. Section XII of this regulation stated that an individual could be reduced for misconduct by an operation of law. DISCUSSION: 1. The applicant contends his misconduct resulted from a TBI and PTSD he sustained during his service in the Republic of Vietnam. The applicant's record contains no documentation and he provides no evidence that shows he was diagnosed with PTSD or other mental health issues at any time, either during or after his period of active military service. 2. The applicant appears to contend his age at the time of his enlistment should be considered a mitigating factor in the misconduct that resulted in his numerous reductions in rank and grade. While the evidence of record does show he was between 18 and 19 years of age at the time of his offenses, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service without such instances of misconduct. 3. The applicant was reduced in rank and grade following numerous instances of NJP and several convictions by summary court-martial. While he was able to regain his rank in the early months of 1970, his summary court-martial convictions in May and August 1970 resulted in his reduction to the rank/grade of PVT/E-1. After his last court-martial in August 1970, he was not promoted again and was separated on 6 December 1970. 4. Lacking evidence to the contrary, it is presumed his reductions were accomplished in accordance with applicable law and regulation and without an error or injustice. His record does not contain evidence and he has not provided evidence that shows his reductions in rank occurred as a result of an administrative error or that he was improperly or unfairly reduced in rank. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005172 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2