BOARD DATE: 12 May 2016 DOCKET NUMBER: AR20150010473 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: 12 May 2016 DOCKET NUMBER: AR20150010473 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: 12 May 2016 DOCKET NUMBER: AR20150010473 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show in: * Item 4a (Grade, Rate, or Rank) – sergeant (SGT) * Item 4b (Pay Grade) – E-5 2. The applicant states after the Gulf War, he was diagnosed as 70 percent disabled due to post-traumatic stress disorder (PTSD). Prior to the Gulf War, he was a good Soldier. The U.S. Army never disciplined him during his period of service. He believes if he had received the help he needed he would not have tampered with the urine test. He enlisted for 12 years and that was the only problem he had during this period. After returning from the Gulf War, he did not receive the help he needed. 3. The applicant provides copies of his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) and 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 the cases 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. 2. The applicant enlisted in the Regular Army (RA) on 28 October 1982 and he held military occupational special (MOS) 19K (MI Armor Crewman). He reenlisted in the RA on 24 October 1985. 3. Section III (Service, Training, and Other Dates) of his DA Form 2/1 (Personnel Qualification Record – Part II) – shows he was promoted to pay grade E-5 on 1 August 1989. 4. He again reenlisted in the RA on 29 October 1990. He served in Southwest Asia from 3 January 1991 through 20 May 1991. 5. His records contain and he provides a copy of a DA Form 2627 showing he received nonjudicial punishment (NJP) under Article 15, UCMJ, for wrongfully altering a urine sample on 20 April 1994. His punishment included a reduction to the rank/pay grade of specialist (SPC)/E-4 effective 20 June 1994. He elected not to appeal. 6. The Army honorably discharged him on 28 June 1994 and credited him with completing 11 years, 8 months, and 1 day of net active service. His DD Form 214 lists in: * Item 4a – SPC * Item 4b – E-4 * Item 12h (Effective Date of Pay Grade) – 20 June 1994 7. He enlisted in the Kentucky Army National Guard (KYARNG), in pay grade E-4, on 29 June 1994 and he held MOS 19K. 8. His records also contain the following orders issued by the KYARNG: * Number 15-2, on 16 October 1994, reducing him from the rank/grade of SPC/E-4 to private first class (PFC)/E-3, with an effective date of 17 October 1994 and date of rank of 1 November 1983 * Number 18-2, on 18 January 1995, reducing him from the rank/grade of PFC/E-3 to private (PVT)/E-2, with an effective date of 18 January 1995 and a date of rank of 28 April 1983 9. The KYARNG released him, in pay grade E-2, on 9 February 1995, for Unsatisfactory Participation. He was transferred to the U.S. Army Reserve (USAR). 10. The USAR honorably discharged him, in pay grade E-2, on 11 July 2000. 11. His military records are void of and he failed to provide any evidence of a diagnosis of PTSD or any other mental health condition during his period of active duty. REFERENCES: 1. Army Regulation 635-5 (Separation Documents), in effect at the time, governed the preparation of the DD Form 214. It stated the DD Form 214 would be prepared for all personal at the time of their retirement, discharge, or release from active duty. The regulation stated items 4a and b would list the active duty rank/grade at the time separation and item 12h would list the effective date of the pay grade from the most recent promotion/reduction order. 2. Army Regulation 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice. Chapter 3 implemented and amplified Article 15, of the UCMJ. The regulation stated in: a. Paragraph 3-18 – the guidance on notification procedures and explanation of rights. The imposing commander would ensure that the Soldier was notified of the commander's intention to dispose of the matter under the provisions of Article 15. The Soldier would be informed of the following: the right to remain silent, that he/she was not required to make any statement regarding the offense or offenses of which he/she was suspected, that any statement made could be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial. The Soldier would be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, request to be accompanied by a spokesperson, an open hearing and to examine available evidence. b. Paragraph 3-28 – the guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside. The basis for any set aside action was a determination that, under all the circumstances of the case, the punishment had resulted in a clear injustice. "Clear injustice" meant that there existed 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 3-28 – a clear injustice did not include the fact that the Soldier's performance of service had been exemplary subsequent to the punishment or that the punishment could have a future adverse effect on the retention or promotion potential of the Soldier. DISCUSSION: 1. The evidence of record shows the applicant accepted NJP for altering a urine sample. This was after his period of service during the Gulf War. His punishment included a reduction from pay grade E-5 to E-4 effective 20 June 1994. He elected not to appeal. 2. There is no evidence of record and he provided none to show PTSD or any medical conditions caused him to tamper with a urine sample. Any medical condition(s) that he may have been diagnosed with would not necessarily have been the cause of his willful tampering with a urine sample. 3. By regulatory guidance the basis for any set aside of an NJP action it must be a determination that, under all the circumstances of the case, the punishment resulted in a clear injustice. 4. During his NJP proceedings, he had an opportunity to demand trial by court-martial and claim his innocence before an appropriate military court. The evidence of record shows he accepted multiple reductions in pay grade throughout his military service. He has not shown an error or an injustice in the actions taken by the Army in his case. 5. His records are void of and he did not provide evidence showing he was again promoted to SGT/E-5 following his reduction to E-4 prior to his discharge. His DD Form 214 properly shows his rank/grade was SPC/E-4 at the time of his separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010473 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010473 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2