ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20160015092 APPLICANT REQUESTS: reconsideration of his previous request for restoration of rank to staff sergeant (SSG)/E-6 to include pay. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Report of Separation From Active Duty) * DD Form 215 (Correction to DD Form 214, Report of Separation From Active Duty) * DA Form 2627-1 (Record of proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) * Appeal statement from UCMJ * Email from National Personnel Records Center (NPRC) to Army Review Boards Agency (ARBA) * Letter from ARBA, dated 21 September 2016 FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20060009889 on 18 January 2007. 2. The applicant states that, in effect, he wants his E-6 grade reinstated to include pay. He was given an Article 15 in April 1970. He was reduced to sergeant (SGT)/E-5 (suspended for two months), forfeiture of pay of $50.00 per month for two months. His pay grade and pay were taken away permanently instead of for two months as stated in the Article 15. He served in Vietnam from June 1968 until June 1970 in Long Binh with the light and heavy trucking outfit, 534th Transportation Company. Their mission convoys headed north every day. As a staff sergeant, SSG/E-6, he was in charge of a March Unit consisting of 5 vehicles which was a part of a 100 vehicle convoy. The captain, officer in charge said, “I gave the wrong order.” The command reduced him one pay grade in rank. He thinks there were false statements made against him at that time. He believes his Article 15 was done in error. His troop left the March Unit he was in charge of. It was his duty to see what caused him to break the March Unit. The applicant states that he was not derelict in his duty performance. He followed the specialist four (SP4)/E-4) to find out why he broke formation and drove off by himself. The two talked and the applicant ordered him to return to formation. The SP4 had a vehicle accident damaging the government vehicle while getting back in formation. He was a licensed and a trained driver; that was his job. The applicant is 71 years old, it would give him peace of mind and his dignity back to have his pay grade reinstated 3. The applicant provides a. DD Form 214 showing he was discharged honorably in the rank of SGT/E-5) on 28 May 1976. b. DD Form 215 showing correction of his dates in blocks 18b (Prior Active Service) to 4 years, 0 months, and 7 days, block 18c (Total Active Service) to 13 years, 1 month, and 5 days, and 18e (Total Service for Pay) to 13 years, 1 month, and 5 days. c. DA Form 2627-1 dated 22 April 1970, showing that he was punished for failure to obey an order or regulation for neglect by suffering a truck. His punishment included reduction to SGT/E-5 (suspended for two months) and forfeiture of $50.00 per month for two months. He appealed the punishment. d. Applicant provided a statement of appeal of the punishment issued on 28 April 1970 stating that his action did not constitute dereliction of duties. 4. A review of the applicant’s service record shows the following: a. He was inducted into the Army of the United States on 24 April 1963. b. He was discharged on 26 April 1964 for immediate enlistment in the Regular Army (RA). He enlisted in the RA on 27 April 1964 and reenlisted on 1 May 1967. c. DA Form 20 (Enlisted Qualification Record) reflects his highest rank held was SSG/E-6 with a date of rank of 30 December 1968. d. He accepted non-judicial punishment (NJP) on: (1) 6 July 1968 for failure to go at time prescribed to appointed place of duty. (2) 28 April 1970 for failure to obey an order or regulation. His punishment included reduction to SGT/E-5 (suspended for two months) and forfeiture of $50.00 per month for two months. He appealed the punishment and it was granted in part in that the word “willfully” be set aside. (3) 21 August 1970 for wrongfully and falsely having in his possession with intent to deceive an official pass; wrongfully possessing marijuana; failure to obey an order or regulation. His punishment included reduction to the grade of SGT/E-5 and forfeiture of $100.00 per month for two months. He appealed the punishment and it was denied. (4) 20 April 1971 for without authority go from appointed place of duty without being properly relieved and for with intent to deceive sign an official record. e. On 16 January 1973, he extended his enlistment for 24 months to satisfy the requirements of qualitative management. He again extended on 7 April 1975 for 11 months to meet maximum retention point. He extended on 22 March 1976 for one month while awaiting review of QMP appeal. f. On 28 May 1976, he was honorably discharged for completion of required service by authority of Army Regulation 635-200 (Personnel Separations), chapter 2, in the rank of SGT/E-5. His DD Form 214 showed in: * item 6a (Grade, Rate or Rank) and 6b (Pay Grade) shows SGT and E-5 * item 7 (Date of Rank), 27 August 1970 g. DD Form 215 showing correction of his dates in blocks 18b to 4 years, 0 months, and 7 days, block 18c to 13 years, 1 month, and 5 days, and 18e to 13 years, 1 month, and 5 days for DD Form dated 28 May 1976. h. On 10 August 1984, he enlisted in the Washington Army National Guard (WAARNG) in the pay grade of E-5. i. Orders number 277-80, dated 4 October 1992 honorably discharged the applicant from the WAARNG and assigned him to the Retired Reserve effective 5 October 1992. He was issued a NGB Form 22 (Report of Separation and Record of Service). It shows his rank as sergeant/E-5. 5. By 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. Paragraph 3-8e addresses reduction in grade: promotion authority, the grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction. * His Article 15, dated 28 April 1970 (failure to obey an order or regulation) resulted in a suspended reduction to SGT/E-5 (suspended for two months) * His Article 15, dated 21 August 1970 (wrongfully and falsely having in his possession with intent to deceive an official pass; wrongfully possessing marijuana; failure to obey an order or regulation) resulted in a reduction to SGT/E-5 6. The ABCMR corrects military records. If as a result of this correction, a financial entitlement or a debt is created, the Board's decision is transmitted to DFAS for collection or payment. For any alleged entitlement to unpaid pay and allowances, a service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed. Such requests are addressed directly to DFAS. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the military service record, the Board determined there was insufficient evidence to show an error or injustice which would warrant changing the applicant’s rank. The Board found that the Article 15 was completed correctly with all due process afforded to the applicant; therefore, the Board recommended denying the applicant’s request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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 non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to non-judicial punishment (NJP) under the Uniform Code of Military Justice. Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. 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 3-8e. Reduction in grade. Promotion authority. The grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction. For the purposes of this regulation, a commanding officer has "promotion authority," within the meaning of Article 15(b), if he has the general authority to appoint to the grade from which reduced or any higher grade. b. Paragraph 3-17 suspensions. Ordinarily, the purpose of suspending punishment will be to grant to a deserving member a probational period during which he may show that he is deserving of remission of the suspended portion of his nonjudical punishment. If, because of further misconduct by the member within this period, it is determined that remission of the suspended punishment is not warranted, the suspension may be vacated and the suspended portion of the punishment executed. Action vacating a suspension will be recorded in accordance with notes 10 and 11, Part III, DA Form 2627 (Record of Proceedings). Unless the suspension is vacated prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action. c. Paragraph 3-20 describes setting aside and restorations. 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. d. Paragraph 3-21 limitations with respect to reduction in grade. An unsuspended reduction in grade, imposed as NJP, becomes fully executed at the time it is imposed. Accordingly, there can be no remission of an unsuspended reduction. e. Paragraph 3-22 who may act on an appeal. An appeal under Article 15 will be acted upon by the authority next superior to the officer who imposed the punishment if the person punished is still of the command of that officer at the time he appeals, but if the punishment has been imposed under a delegation of the superior's power to impose NJP (see para 128, MCM, 1969) the appeal will be acted upon by the authority next superior to him. ABCMR Record of Proceedings (cont) AR20160015092 5 1