IN THE CASE OF: BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160004676 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: 21 November 2017 DOCKET NUMBER: AR20160004676 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: 21 November 2017 DOCKET NUMBER: AR20160004676 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 Special Court-Martial Order Number 27, issued by Headquarters, 25th Infantry Division Support Command, on 27 September 1974, from his official military personnel file (OMPF). 2. The applicant states it has been years since he was convicted and he has matured. The order contains only one charge for which he was found guilty. 3. The applicant provides a copy of the special court-martial order. 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 22 December 1971 at 18 years of age. The highest rank/grade he attained while serving on active duty was specialist four/E-4. 3. The applicant's record contains and he provides Special Court-Martial Order Number 27, issued by Headquarters, 25th Infantry Division Support Command, 25th Infantry Division, on 27 September 1974. These orders show he was found guilty, on 22 August 1974, of the following charges: a. Charge 1, one specification of violating Article 86 of the Uniform Code of Military Justice (UCMJ); specifically, for without authority, failing to go at the time prescribed to his appointed place of duty on or about 24 June 1974. b. Charge 2, one specification of violating Article 92 of the UCMJ; specifically, for failing to obey a lawful order from a noncommissioned officer (NCO), an order which it was his duty to obey, on or about 26 June 1974. c. Additional Charge, one specification of violating Article 134 of the UCMJ; specifically, for wrongfully communicating a threat to injure an NCO on or about 26 June 1974. 4. The applicant was sentenced to reduction to the rank/grade of private first class/E-3, extra duty for a period of 60 days, and forfeiture of $100.00 pay per month for four months. The sentence was approved on 27 September 1974. 4. The applicant was released from active duty on 4 December 1974. His DD Form 214 (Report of Separation from Active Duty) shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of relief from active duty. He completed 2 years, 11 months, and 13 days of total active service. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. 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 640-10 (Personnel Records and Identification of Individuals - Individual Military Personnel Records), in effect at the time, prescribes policies pertaining to individual personnel records of all members of the Army on active duty and the U.S. Army Reserve. There were two categories of records for military personnel: the military personnel records jacket, which was maintained by the field, and the OMPF, which was maintained by The Adjutant General. Documents were listed as permanent, action pending, and temporary. Documents listed as permanent would not be removed unless authorized by the appropriate authority. An appendix (Document and Form List) of this regulation shows court-martial orders as permanent documents not to be removed from the MPRJ or OMPF. DISCUSSION: 1. The applicant requests removal of Special Court-Martial Order Number 27 from his OMPF. 2. The evidence of record shows the applicant was convicted by a special court-martial on several charges. As a result, the special court martial order was filed in his MPRJ/OMPF as a permanent document. 3. The applicant contends it has been years since the action took place and he has matured over the years. There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who completed their military service obligations without having been found guilty at a court-martial. 4. The purpose of maintaining the OMPF is to protect the interests of both the Army and the Soldier. In this regard, the documents in the OMPF serve to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF. 5. It is understandable that the applicant would like the document in question removed from his record; however, there is no evidence the document was improperly issued or that it was improperly filed in his record. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004676 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004676 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2