BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20160002170 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 BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20160002170 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. BOARD DATE: 6 July 2017 DOCKET NUMBER: AR20160002170 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 correction of his records: * to set aside the nonjudicial punishment (NJP) he received under Article 15, Uniform Code of Military Justice (UCMJ) * restoration of time lost due for erroneously being reported as absent without leave (AWOL) * repayment of all forfeited pay with interest 2. He states he was not AWOL during the period listed on the Article 15. He contends that his period of absence occurred when he was receiving treatment for a painful hemorrhoid and recovering from surgery. He further contends he was threatened with a dishonorable discharge if he did not sign the Article 15. The sole purpose of the Article 15 was to force his family to return to Indiana and it worked. He lost his rented apartment because he had to forfeit pay as part of his punishment. 3. He provides his DA Form 2627 (Record of Proceedings under Article 15, UCMJ), dated 1 September 1976, and medical documents for the period 31 May to 28 July 1976. 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. He enlisted in the Regular Army on 2 April 1976. He accepted NJP under the provisions of Article 15 of the UCMJ on 1 September 1976 for being AWOL from 24 August to 1 September 1976. His punishment included forfeiture of $180.00 for 2 months, restriction, and extra duty. He elected not to appeal this action. 3. On 11 November 1977, a special court-martial found the applicant guilty of being AWOL from 20 to 30 June 1977. He was sentenced to 14 days of extra duty and forfeiture of $100.00 pay for 1 month. 4. His DA Form 2-1 (Enlisted Qualification Record) shows he had four periods of lost time between 24 August 1976 and 10 October 1977. His total lost time equaled 28 days. 5. The applicant was released from active duty on 25 April 1979 and he was transferred to the U.S. Army Reserve. His DD Form 214 (Report of Separation from Active Duty) shows he completed 3 years and 4 days of active service with 28 days of lost time. 6. He provided the following evidence: a. a Standard Form 600 (Chronological Record of Medical Care) and Standard Form 513 (Clinical Record – Consultation Sheet) showing while assigned to Fort Lee, VA, he: * was treated for a hemorrhoid on 31 May 1976 and given bed rest for 72 hours * completed a follow-up examination on 3 June 1976 * was treated for the same issue on 7 June 1976 * was treated for the same issue on 11 June 1976 (Standard Form 513) * underwent surgery to remove the hemorrhoid on 29 July 1976 * completed a follow-up examination on 3 August 1976 b. a DA Form 3647-1 (Clinical Record Cover Sheet), dated 1 July 1976. This document shows the General Surgery Clinic reported his duty status as follows: * convalescence leave, on 17 to 28 June 1976 * from leave to AWOL, on 28 June 1976 * from AWOL less than 10 days, 1 July 1976 REFERENCES: 1. 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. 2. 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. Paragraph 3-28 describes setting aside and restorations. a. This 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 under Article 15. c. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. DISCUSSION: 1. The applicant requests, in effect, correction of his records to set aside the NJP, restoration of lost time, and return of pay that was forfeited as a result. 2. The applicant provides medical documentation to show he received treatment and underwent surgery for a medical condition during the period May through July 1976. However, he provides no evidence, and the record is void of evidence, to show he was present for duty during the period of AWOL for which he accepted NJP on 24 August to 1 September 1976. 3. The fact that he was treated for a medical condition which caused him to be absent from duty is not in question. However, other than his statement, there is no evidence to support the applicant’s contention that the AWOL period listed on his Article 15, dated 1 September 1976, is in error or that he was forced to sign the document. 4. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. The available evidence shows no clear instance of legal or factual error. 5. The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander’s determination is clearly unsupported by the evidence. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002170 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002170 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2