BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160001936 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x_____ __x______ __x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160001936 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) dated 29 January 1986 from his Military Personnel Record Jacket and Official Military Personnel File. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to reinstating his rank/grade to specialist four (SP4)/E-4 or upgrading the characterization of his service. ___________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: 29 August 2017 DOCKET NUMBER: AR20160001936 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, expungement of DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from his Official Military Personnel File (OMPF) and an upgrade of his characterization of service to honorable. He also requests reinstatement of his rank/grade to specialist four (SP4)/E-4. 2. The applicant states, in effect, he had a background check and after 30 years, he still had to explain the presence of an Article 15 in his records. He feels it is an injustice to have to continue to address the issue. He has worked in Afghanistan as a contract employee for over 4 years and he continues to maintain a secret clearance. Therefore, he would like the document expunged from his record. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Letter of Authorization * Passport 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 April 1983. 3. Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record - Part II), shows: a. his date of rank (DOR) for the rank/grade of private (PV1)/E-1 as 20 April 1983, the date of his enlistment. b. he was promoted to private (PV2)/E-2 on 1 November 1983. c. he was promoted to private first class (PFC)/E-3 on 1 August 1984. 4. His DA Form 2A (Personnel Qualification Record - Part I), dated 8 April 1985 shows his rank as PFC and his DOR as 1 August 1984. 5. His record does not contain any documentation, such as official orders or a DA Form 4187 (Personnel Action), to show he held the rank/grade of SP4/E-4 during the period of his active duty service. 6. His record contains a DA Form 2627, which records his pay grade as E-2. This form shows, on 29 January 1986, in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for operating a vehicle while drunk on or about 0125 hours, 16 January 1986. His punishment consisted of a reduction to the rank/grade of private (PV1)/E-1, a forfeiture of $300.00 pay per month for two months, extra duty for a period of 45 days and restriction to place of duty, billets area, dining facility, and place of worship for 45 days. The imposing commander, a brigadier general (BG), directed the filing of the original DA Form 2627 in the performance fiche. The applicant elected to appeal his punishment. 7. On 30 January 1986, the applicant received a General Officer Letter of Reprimand (GOLOR) for drunken driving. An investigation revealed that on 16 January 1986, he was operating a vehicle on post with a blood alcohol content of 0.10 percent or higher. The issuing official imposed the GOLOR as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice. 8. On 4 February 1986, the applicant acknowledged receipt of the GOLOR and he elected not to submit matters on his behalf. 9. Orders Number 030-439, published by Headquarters, Fort Carson, and Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, on 5 February 1986, reassigned the applicant to the Separation Transfer point for separation processing with a report date of 18 April 1986. These orders reflect his rank as SP4. 10. On 7 March 1986, the applicant's appeal of the punishment imposed by the NJP he received on 29 January 1986 was denied. 11. On 7 March 1986, a general officer directed the GOLOR dated 30 January 1986, be permanently filed in the applicant's Official Military Personnel File (OMPF). The GOLOR and allied documents are located in the applicant's performance fiche. 12. A DA Form 4126-R (Bar to Reenlistment Certificate) shows, on 14 March 1986, the applicant's commander initiated a local Bar to Reenlistment Certificate, recommending that the applicant be barred from reenlistment. The commander based the recommendation on the applicant's record of poor judgement toward the safety of himself and others, despite repeated verbal and formal counseling on the consequences of driving while under the influence on two separate occasions. This form also documents that the applicant received a copy of the recommendation and he acknowledged that he received a copy of his commander's recommendation to bar him from further reenlistment, he was counseled and advised of the basis for the action, and he indicated he did not desire to submit a statement in his own behalf. The bar to reenlistment was approved on 18 March 1986. 13. Orders Number 089-404, published by Headquarters, Fort Carson, and Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO on 16 April 1986 amended so much of: Orders Number 030-439, published by Headquarters, Fort Carson, and Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO on 5 February 1986, Pertaining to: [Applicant]: a. As Reads: [Applicant] SP4 b. How changed: [Applicant] PVT 14. His DD Form 214 shows he was honorably released from active duty in the rank/grade of PV1/E-1. He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation. He completed 3 years of net active service this period, with no time lost. 15. Orders D-04-034036, published by the U.S. Army Personnel Center, St. Louis, MO on 26 April 1989 honorably discharged the applicant in the rank/grade of SP4/E-4 from the Ready Reserve. 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). Chapter 3, of the regulation in effect at the time, implemented and amplified Article 15, UCMJ, and Part V, MCM. a. Paragraph 3-2 (Use of nonjudicial punishment) states a commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting, to nonjudicial punishment (para 1d(1), Part V, MCM). Use of nonjudicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that nonjudicial punishment will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential, for nonjudicial punishment to have the proper corrective effect. Nonjudicial punishment may be imposed to- (1) Correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures. (2) Preserve a member's record of service from unnecessary stigma by record of court-martial conviction. (3) Further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. b. Paragraph 3-4 (Personal exercise of discretion (para 1d(2), Part V, MCM) states a commander will personally exercise discretion in the nonjudicial punishment process by- (1) Evaluating the case to determine whether proceedings under Article 15 should be initiated. (2) Determining whether the, service member committed the offenses) where Article 15 proceedings are initiated and the service member does not demand trial by court-martial. (3) Determining the amount and nature of any punishment, if punishment is appropriate. c. Paragraph 3-28 (Setting aside and restoration) describes the setting side of punishment and restoration or rights, privileges, or property. 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. Nonjudicial punishment 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. 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, which clearly and affirmatively injured the substantial rights of the member. An example of "clear injustice" would be the discovery of new evidence unquestionably exculpating the member. "Clear injustice" does not include the fact that the member's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the member. (1) Normally, the member's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. (2) In cases where administrative error, results in incorrect entries on DA Form 2627 the appropriate remedy generally is an administrative correction of the form and not a setting aside of the .punishment. (3) The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed. When a commander sets aside any portion of the punishment, he or she will record the basis for this action. When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action. 2. Army Regulation 640-10 (Individual Military Personnel Records), in effect at the time assigned responsibilities for maintaining and controlling the OMPF and the MPRJ. This regulation also controlled the filing of documents in military personnel records and identified records authorized for filing. a. Paragraph 3-2 (Filing documents in the MPRJ) states only those documents listed in table .1-1, 2-1, 2-2, 3-1, and 3-2 are authorized for filing in or with the MPRJ. b. Table 3-1 (Composition of the MPRJ) states DA Forms 2627 (Record of Proceedings under Article 15, UCMJ) and any supplemental forms will be filed in the performance fiche if so directed by the issuing commander. All forms will be kept permanently with the exception of enlisted members with 3 years or less active duty at the time of the offense. In these cases, remove the Article 15 when the member is separated from service. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It established standardized policy for the preparation of the DD Form 214. In pertinent part, it stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of REFRAD, retirement or discharge. This regulation, in pertinent part, also stated the active duty rank and pay grade at the time of separation will be entered in Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) of the DD Form 214, respectively. 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. DISCUSSION: 1. The applicant was released from active duty with an honorable characterization of service and he was discharged from the USAR honorably. An honorable characterization of service is the highest characterization of military service; therefore, there is no basis to upgrade characterization of his military service. 2. The available record does not contain official orders or a DA Form 4187 to show he held the rank of SP4 at any time during the period of his active duty service. Additionally, he received NJP under the provisions of Article 15 for operating a vehicle while drunk on or about 0125 hours, 16 January 1986. His punishment included a reduction in rank/grade from PV2/E-2 to PVT/E-1. He elected to appeal the NJP, but his appeal was denied. 3. The applicable regulation requires the entry of the active duty rank and pay grade at the time of separation in items 4a and 4b of the DD Form 214. While the available evidence indicates he held the rank/grade of SP4/E-4 upon his discharge from the USAR on 26 April 1989, this rank would not be reflected on his DD Form 214 for the period ending 19 April 1986 because any promotion he received would have occurred after his release from active duty. 4. Army Regulation 640-10 DA Forms 2627 will be kept permanently with the exception of enlisted members with 3 years or less active duty at the time of the offense. In these cases, remove the Article 15 when the member is separated from service. The evidence of record shows the applicant served less than three years of active duty service at the time he committed the offense, which resulted in the applicant's receipt of NJP. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001936 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001936 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2