IN THE CASE OF: BOARD DATE: 19 June 2012 DOCKET NUMBER: AR20110021784 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, removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 2 May 1978, from his records. 2. The applicant states: * he had no knowledge of any previously-issued orders by Lieutenant Colonel (LTC) D----- L. B------- * he was one of nine found consuming alcohol against orders and the only one who had Article 15 proceedings taken against him for telling the truth – the others lied and "got off scott free" – including the platoon sergeant who supplied the alcohol and profited from its sale * at the time he received his Article 15 he was suffering from depression * his depression resulted from the death of his daughter, his permanent change of station (PCS) move to California, and the isolation he and his wife (a German national) faced due to not having friends at their new duty location * all he and his wife had to get through their grief and depression was each other * he served at Fort Ord, CA for over 64 weeks and he spent a third of that time in the field – leaving his wife completely isolated and both of them more depressed * he spoke to his chain of command about his depression; however, they were unsympathetic * regarding the alcohol, he was young and assumed since his leaders were involved, it was OK * he was never given an opportunity to get professional help and counseling for his alcohol and depression issues 3. The applicant provides: * Special Orders Number 354, issued by Headquarters, U.S. Army Europe and Seventh Army, dated 20 December 1974 * Letter of Appreciation issued by Headquarters, 51st Maintenance Battalion, dated 14 July 1975 (with 1st Endorsement, dated 31 July 1975) * Certificate of Appreciation, dated 11 July 1976 * Orders 81-9, issued by the U.S. Army Regional Personnel Center, Mannheim, dated 4 October 1976 * Permanent Orders 69-5, issued by the U.S. Army Regional Personnel Center, Mannheim, dated 19 October 1976 * DA Form 3565 (Certificate of Death (Overseas)), dated 8 March 1977 * Orders 65-28, issued by the U.S. Army Regional Personnel Center, Mannheim, dated 10 March 1977 * DA Form 2166-5 (Enlisted Evaluation Report), dated 16 March 1977 * Orders 180-217, issued by Headquarters, 7th Infantry Division, Fort Ord, dated 29 June 1977 * Fort Ord (FO) Form 1-54 (Record of Informal Counseling Session), dated 4 May 1978 * Pages 3 and 4 of a 4-page FO Form 1-65 (Discharge for Misconduct/ Unsuitability under Army Regulation 635-200 (Personnel Separations – Enlisted Personnel)) * Photographs of a coffin at a gravesite and an infant child, presumed to be his daughter 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's Official Military Personnel File (OMPF) is not available for review – neither in microfiche nor electronic format. The record review consists of reviewing the applicant's DA Form 201 (Military Personnel Records Jacket (MPRJ)). 3. The applicant enlisted in the Regular Army on 19 November 1973. He completed training and was awarded military occupational specialty 36G (Manual Central Office Repairman). Upon the completion of his initial entry training, he was assigned to the 512th Maintenance Company, 51st Maintenance Battalion, Mannheim, Germany. On 3 October 1976, he was honorably discharged for the purpose of immediate reenlistment and he reenlisted on 4 October 1976. 4. On 25 April 1977, he was assigned to Headquarters and Headquarters Company, 707th Maintenance Battalion, Fort Ord. 5. Orders 180-217, dated 29 June 1977, promoted him to the rank/grade of sergeant (SGT)/E-5, effective 1 July 1977. 6. His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, on: * 2 May 1978, for disobeying a lawful command on 17 April 1978 not to consume alcohol during the Brave Shield Exercise (reduced from SGT to specialist four (SP4)/E-4) * 20 June 1978, for being incapacitated for the proper performance of his duties as a result of previous indulgence in intoxicating liquor (reduced from SP4 to private first class (PFC)/E-3) 7. Under both proceedings, having been afforded the right to seek legal counsel, he elected not to demand trial by court-martial; that matters in defense and/or extenuation would be presented in person, and that an open hearing was not requested. Following the imposition of punishment, he elected not to appeal his punishment. 8. Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was reduced from SGT to SP4, effective 2 May 1978. He was further reduced to PFC, effective 20 June 1978. These reduction dates coincide with the imposition of NJP under the provisions of Article 15, UCMJ. 9. On 3 August 1978, he was discharged from the Army. The DD Form 214 he was issued shows he completed 4 years, 8 months, and 15 days of total active service. 10. He provides numerous documents that show: * he was successful throughout his period of foreign service in Germany * his infant daughter died on 8 March 1977 * he was immediately reassigned to Fort Ord following his daughter's death * his duty performance suffered after his PCS movement to Fort Ord where he received multiple NJP actions resulting in two reductions in rank 11. 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. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. Prompt action is essential for NJP to have the proper corrective effect. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures, to preserve a Soldier's record of service from unnecessary stigma by 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. a. Paragraph 3-6 addresses the filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF is as important as the decision relating to the imposition of NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. b. Paragraph 3-18(l) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense. Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside. It states that 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 there is 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. c. Paragraph 3-37b(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed. The filing decision of the imposing commander is subject to review by superior authority. Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section. d. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF. It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR. 12. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF. This regulation states that only those documents listed in table 2-1 (Composition of the OMPF) and table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF. Depending on the purpose, documents will be filed in the OMPF in one of three sections: performance, service, or restricted. Table 2-1 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF as directed in item 5 of the DA Form 2627. 13. Paragraph 2-3 of Army Regulation 600-8-104 provides that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers. The release of information in this section is controlled. It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or the Headquarters, Department of the Army, selection board proponent. This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army. 14. Army Regulation 27-10 states that commanders may impose NJP for the administration of discipline under the provisions of Article 15 of the UCMJ. Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15. This regulation also stipulates that only one appeal is permissible under Article 15 proceedings. An appeal not made within a reasonable time may be rejected as untimely by the superior authority. DISCUSSION AND CONCLUSIONS: 1. The evidence confirms the applicant elected not to demand a trial by court-martial and chose to have his case disposed of through Article 15 proceedings at a closed hearing with the imposing authority. He had the opportunity to decline the 2 May 1978 Article 15 at any time prior to the imposition of punishment being announced and demand trial by court-martial. His election to accept the Article 15 was his choice. He was further afforded the opportunity and exercised his right to appeal after the imposition of his punishment; however, he elected not to appeal. There is neither an error nor an injustice during the processing of his NJP. 2. Issues of guilt or innocence under Article 15, UCMJ are not normally reexamined. 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. Furthermore, his case has already been adjudicated through the Army’s legal system and he was provided with the right to trial by court-martial and afforded the opportunity to appeal his punishment through the proper channels. By regulation, the basis for any set-aside action must show "clear injustice," which means an unwaived legal or factual error 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. 3. The evidence of record confirms the applicant's NJP processing was accomplished in accordance with the applicable law and regulation and that the imposing commander determined the applicant was guilty of the charged offense. There is no evidence of record or independent evidence provided by the applicant that would call into question the validity of this decision of the imposing commander. 4. The applicant violated the UCMJ and he was accordingly punished. His punishment included a reduction of one grade. There is neither an error nor an injustice in his NJP proceedings. He has not demonstrated the NJP action was unjust or untrue, or that this NJP should be removed because of the length of time, or that a removal would be in the best interest of the Army. 5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief. BOARD VOTE: ________ ________ ________ 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 that 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. ABCMR Record of Proceedings (cont) AR20080007602 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110021784 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1