ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  18 June 2019

	DOCKET NUMBER:  AR20170005432


APPLICANT REQUESTS:  to be restored to the rank/grade of Sergeant (SGT)/E-5

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* a self-authored statement
* the first two pages of a record of nonjudicial punishment (NJP)
* page three of his DA Form 2-1 (Personnel Qualification Record) 

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states he was a SGT/E-5 and received NJP from his commanding officer.  He was reduced to corporal (CPL)/E-4 and forfeited $65.00 of his pay for three months.  The punishment he received was unjustified and based on erroneous information provided to his commanding officer, who misrepresented the facts.  He is providing a detailed statement at this time to set the record straight.  

3.  The applicant provides:

     a.  A self-authored statement, dated 8 February 2017, in which he states that he was a military policeman (MP) assigned to pick up Soldiers/prisoners returning from being absent without leave (AWOL).  Both he and a specialist (SPC) named X___ were on the AWOL Apprehension Team and SPC X___ was a team member of his.  He had returned from Phoenix, Arizona (AZ) with some prisoners when he got a call from SPC X___ telling him that while transporting a prisoner from Phoenix, AZ to the California border, the prisoner had escaped.   He asked SPC X___ what vehicle he was using and SPC X___ told him that he was driving his own privately owned vehicle (POV).  He did not give SPC X___ permission to use his POV and he did not allow SPC X___ to ever transport prisoners without being armed and without handcuffs.  SPC X___ failed in his duties by not following military police regulations and he did so of his own volition.  He used extremely poor judgment and was derelict in his duties.  The 1SG totally misrepresented the facts to the company and battalion commanders (see attached self-authored statement).

     b.   Two pages of a DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ), which show:

* it had been reported to the battalion commander that he had been derelict in his duty on 9 October 1967
* as of 30 October 1967 the commander intended to impose NJP for the offense unless he demanded trial by court-martial
* he had 48 hours to acknowledge receipt of the communication and could submit any matter in mitigation, extenuation, or defense
* he was not required to make any statement regarding the offense, but any statement he made could be used as evidence at a trial by court-martial
* on 2 November 1967 he acknowledged receipt, indicated court-martial is not demanded, and that matters would be presented orally
* on 3 November 1967 the battalion commander reduced him to CPL/E-4 and advised him of his right to appeal within 48 hours

     c.  Page three of a DA Form 2-1 (Personnel Qualification Record), which shows that all previous ratings of his conduct and efficiency had been excellent.

4.  A review of the applicant’s service record shows:

     a.  On 16 February 1965, he enlisted in the Regular Army for a term of three years.

     b.  Page three of the DA Form 2627-1 submitted by the applicant wherein he declined to appeal the punishment imposed.

     c.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 17 February 1968, wherein he was released from active duty with an honorable characterization of service and transferred to the United States Army Reserve.  The DD Form 214 further shows:

* item 5a (Grade, Rate or Rank), CPL
* item 5b (Pay Grade), E-4
* item 6 (Date of Rank), 3 November 1967 

5.  By regulation, enter grade in which serving at time of separation indicating whether permanent or temporary.  Pay grade will also be shown.  Example:  “MSgt (P) (E-7)” or “MSgt (T) (E-7).”

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found the relief was not warranted.  The applicant’s contentions were carefully considered.  The applicant was reduced to from SGT to SPC as a result of accepting non-judicial punishment.  Based upon the preponderance of evidence, the Board agreed the reduction as a result of the NJP was of no error, and denied 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 (AR) 15-185, (Boards, Commissions, and Committees—Army Board for Correction of Military Records), provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for correction of a military record.  Paragraph 2-9 states 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.

3.  AR 635-5, (Personnel Separations—Administrative Separation Procedures and Forms), in effect at the time, established uniform administrative procedures and forms to be used in conjunction with relief from active duty or complete separation from military service.  Instructions for the preparation of DD Form 214 directed entry of the rank and grade in which serving at the time of separation along with indicating whether permanent or temporary.

ABCMR Record of Proceedings (cont)	 AR20170005432


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