IN THE CASE OF: BOARD DATE: 12 April 2016 DOCKET NUMBER: AR20150009429 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: 12 April 2016 DOCKET NUMBER: AR20150009429 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: 12 April 2016 DOCKET NUMBER: AR20150009429 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, his rank of specialist four (SP4) (E-4) be restored. He also requests to be advised as to what awards he is authorized and where to get a set of uniforms and ribbons. 2. The applicant states he tested positive on a urinalysis that prevented him from being promoted. The post commander punished the group of Soldiers who tested positive at the same time with 45 days of restriction, 45 days of extra duty, and loss of rank, for E-5 and above one pay grade and for E-4 and below all rank. The group of Soldiers who had proceeded his group and the group that followed who tested positive for illegal drugs only received the punishment of 45 days of restriction and extra duty. He believes he should have received the same punishment as those (individuals). He requests information on where and how to obtain a set of uniforms and ribbons because he wants to proudly wear his uniform and to be buried in it. 3. The applicant provides a photograph of himself in uniform. 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 in 7 September 1984, completed training, and was awarded military occupational specialty 52C (Utilities Equipment Repairman). 3. The applicant was advanced to SP4 on 1 January 1986 and reduced to private two (PV2) effective 31 October 1986. 4. On 31 October 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana/hashish and failing to go at the time prescribed to his place of duty on two occasions. The DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) shows his punishment as reduction to pay grade E-2, 45 days of restriction and extra duty. 5. The applicant received a bar to reenlistment and denial of the Good Conduct Medal on 3 February 1987 based on the NJP action. 6. On 6 June 1987, the applicant was honorably released from active duty under the reduction in force - early transition program. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had 2 years, 9 months, and 30 days of net active service this period and he was authorized the Army Service Ribbon, Overseas Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and the Expert Marksmanship Qualification Badge with Grenade Bar. REFERENCES: 1. Army Regulation 27-10 (Military Justice) provides policy for the administration of military justice. a. Chapter 3 states that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member'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 fewer resources than trial by court-martial. The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believes to be relevant to the case. Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander. b. Maximum penalties depend on the rank of the accused and that of the officer imposing punishment. A field grade officer may impose: * Restriction for not more than 60 days * Extra duties for not more than 45 days * Restriction with extra duties for not more than 45 days * Correctional Custody for not more than 30 days (for Soldiers in pay grades E-3 and below) * Forfeiture of 1/2 base pay for two months * Reduction by one grade if in paygrade E-6 or E-5; or reduction to E-1 if in paygrade E-4 to E-2. 2. Army Regulation 600-37 (Unfavorable Information), chapter 7 -1 sets forth the policies and procedures whereby a person may seek removal of unfavorable information from official personnel files. It states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. The burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 3. Army Regulation 670–1 (Wear and Appearance of Army Uniforms and Insignia), chapter 23 (Wear of the Army Uniform by Reserve, Retired, Separated, and Civilian Personnel) states: a. Unless qualified under another provision of this regulation, or under the provisions of 10 USC 772, former members of the Army may only wear the uniform if they served honorably during a declared or undeclared war, and if their most recent service was terminated under honorable conditions. Personnel who qualify under these conditions will wear the Army uniform in the highest grade they held during such war service, in accordance with 10 USC 772. b. When authorized, the uniform may be worn only for the following ceremonial occasions and when traveling to and from the event and must follow guidance included in paragraph 3–7c. (1) When attending military funerals, memorial services, weddings, inaugurals, and other occasions of ceremony. (2) When attending parades on national or State holidays, or other patriotic parades or ceremonies in which any active or reserve U.S. military unit is taking part. Uniforms for these occasions are restricted to service and dress uniforms; the combat uniform and physical fitness uniforms will not be worn. Wearing the Army uniform at any other time, or for any other purpose than stated above, is prohibited. c. Former members of the Army (as described above) may wear all categories of medals described in this regulation on appropriate civilian clothing. This includes clothes designed for veteran and patriotic organizations on Veteran’s Day, Memorial Day, and Armed Forces Day, as well as at formal occasions of ceremony and social functions of a military nature. Personnel may wear either full-sized or miniature medals. Personnel who wear medals on civilian clothes should place the medals on the clothing in approximately the same location and in the same manner as for the Army uniform, so they look similar to medals worn on the Army uniform. d. The regulation does not specifically address how former Army personnel may obtain replacement uniforms for use during authorized functions. 4. Army Regulation 600-8-22 (Military Awards) states: a. In accordance with 10 USC 1135, 3747, and 3751 all U.S. Army medals are presented at no cost to an awardee. Replacement of medals will be issued on a one-time basis and without charge to the recipient of the military decoration or the immediate primary next of kin of a deceased recipient. Subsequent replacement of medals or service ribbons for individuals not on active duty may be made at cost price. No money should be mailed until instructions are received from Army Human Resource's Command or the National Personal Records Center (NPRC). b. Requests on behalf of individuals having no current U.S. Army status are to be submitted to: National Personnel Records Center (NPRC), 1 Archives Drive, St. Louis, MO 63138–1002 (NPRC website is http://www.archives.gov). DISCUSSION: 1. He has not provided and the record does not contain any evidence that his punishment was any different than what other Soldiers who also received NJP for illegal drug use and being absent from their place of duty received. 2. There is not now nor has there ever been a fixed punishment for illegal drug use beyond the maximum punishments authorized by the Uniform Code of Military Justice. 3. The NJP was imposed in compliance with applicable laws, regulations and policies. The punishment imposed was neither unjust nor disproportionate to the offenses, and there is no evidence of any substantive violation of any of the applicant's rights. 4. Regarding uniforms and awards the applicant may refer to the regulatory guidance in the REFERENCES section above. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009429 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009429 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2