ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 September 2019 DOCKET NUMBER: AR20170008933 APPLICANT REQUESTS: * Restoration of rank to sergeant (SGT) * Refund for Article 15 nonjudicial punishment (NJP) forfeiture of pay $1004.00 * Removal of his Article 15 from his military personnel files APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter of Reprimand * Notification of Recommendations of Formal Board of Officers, dated 10 December 1984 * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) * Department of Veterans Affairs (VA) Letter, dated 8 April 1986 * National Personnel Records Center (NPRC) Letter, dated 22 June 2015 * NPRC Report, dated 6 January 2017 * NPRC Letter, dated 14 February 2017 * Email 6 November 2017 from NPRC (Re-order 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 believes the letter from the board of officers cleared him of all incidents. Drug testing findings were false positive and Article 15 for driving on post. 3. The applicant provides: a. Letter of reprimand issued by the U.S. Army Garrison Military Police Company on unknown date which shows he was officially reprimanded for his actions between 17 July 1983 and 17 August 1983 for abusing Marijuana as evidenced by a positive (THC) Tetrahydrocannabinol urinalysis test result from his sample of 17 August 1983. b. Letter of notification issued by Headquarters, Fort Meade, MD which stated a formal board of officers was convened on 7 December 1984 to determine if the applicant should be separated from active duty. Upon careful consideration of all evidence presented the board recommended the applicant be retained on active duty and that all proceedings under chapter 14 Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) be terminated. c. A DA Form 2627 (Article 15), DD Form 214, and DD Form 215. d. VA Letter date 8 April 1986, which shows his disability compensation award was amended for left and right knee synovitis at 20% service connected disability. e. NPRC Letter, dated 22 June 2015, which shows they responded to his request for Official Military Personnel File (OMPF) by providing his service record documents. A letter dated 14 February 2017 from the NPRC shows they referred him to the Army Review Boards Agency (ARBA) for correction of his military records. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 11 April 1978. b. He served in Hawaii from 22 February 1980 to 3 February 1982. He held the military occupational specialty 76Y (Supply Specialist). c. He was promoted to sergeant (SGT)/E-5 on 3 June 1983, while assigned to the U.S. Army Garrison Military Police Company at Fort Meade, MD. d. His DA Form 4126-R (Bar to Reenlistment Certificate) shows his commander recommended him to be barred from reenlistment on 7 September 1983, for applicant coming up positive on the Unit Urinalysis testing on 17 August 1983, for THC. He was counseled and advised of the basis for this action. * he requested his commander refer him to the Alcohol and Drug Abuse Counseling Program (ADACP) Track I; and be allowed to enroll in the program * after a period of sufficient examination by the Alcohol Drug Abuse Counseling Officers with negative results on urinalysis and successful completion of the program for the bar to reenlistment be lifted * He had served 7 years on active duty as of January 1984, and he had never had any trouble since assigned to Fort Meade on 5 May 1982, e. DA Form 2496 (Disposition Form) shows a request for a restricted driving privilege was made by the applicant on 21 November 1984. It states the following: (1) The applicant was apprehended by the MPs for driving while intoxicated at that time he refused to submit a breathalyzer test, based on that incident the applicant’s privilege to drive on Fort Meade was revoked for 1 year. After his initial revocation, he submitted two requests seeking a restricted driving privilege. The first request was returned without action because he failed to submit it through his chain of command. The second request was lost in distribution. (2) On 16 November 1984, a hearing was held by the installation hearing officer the applicant requested a restricted driving privilege for the purposes of commuting to work, visiting his wife (who lived in Alexandria, VA), on weekends and driving his wife (who was pregnant) to medical appointments during the work week. (3) He stated that while he lived at his wife’s off-post apartment on weekends, he stayed in the government quarters of a friend at Argonne Hills are of Fort Meade during his work week. His practice of living in the government quarters of another servicemember would appear questionable since he continued to draw basic allowance for quarters (BAQ) in order to live off post. His wife, who was also in the military also received BAQ. The applicant stated since having privilege to drive revoked, he was traveling by foot or asking a friend to drive him to work. (4) He reported that he had a perfect driving record before his driving while intoxicated (DWI) arrest. He insisted he was not really drunk but was set up by another MP. He claimed he was tricked into refusing to take a breathalyzer test. However, it should be noted that the applicant was convicted at a contested trial by a United States Magistrate. (5) His commander recommended the applicant’s request to drive on post for the purpose of commuting to work be denied as he informed him that there was a room available for him in the barracks should he wish to live on post. The commander also recommended that the request to drive off post to transport his pregnant wife to medical appointments be approved for humanitarian purposes. On 4 December 1984, a note on the signature block states the company commander advised the subject submitted false statement at hearing and chain of command would contact hearing officer. f. On 13 December 1984, his commander notified him that he was considering whether he should be punished under Article 15 for violating the UCMJ. The applicant consulted with counsel, declined trial by court-martial, and requested an open hearing. He further indicated matters on his behalf were not submitted and that he would present matters in person. g. On 18 December 1984, his DA Form 2627 (Record of Proceedings Under Article 15 Uniform Code of Military Justice (UCMJ)) shows the imposing commander found him guilty of willfully disobeying a lawful order not to operate his privately owned vehicle by wrongfully operating his vehicle on Fort Meade on 7 December 1994. His punishment consisted of reduction to specialist/E-4, it does not show any forfeiture of pay was directed. The imposing officer directed this Article 15 be permanently filed in the performance section of the applicant's OMPF. The applicant was advised of his right to appeal but he elected not to appeal. h. His DA Form 2496, dated 18 December 1984, shows his unit commander recommended the bar to reenlistment be removed based on the fact that the results of a urinalysis test which identified the applicant as having abused the narcotic Marijuana, THC was determined to be invalid by the Department of the Army. At this time there were no grounds on which to impose the bar to reenlistment. i. A letter from the ABCMR, dated 18 December 1984, directed that any and all references to the urinalysis test taken on 17 August 1983, which had been declared unsupportable, be removed from the applicant’s military personnel and medical records and destroyed. That any unfavorable personnel actions to (such as letters of reprimand, bar to reenlist, removal from promotion list, revocation of promotion orders, and/or denial of the Good Conduct Medal, which were based solely on the urinalysis test performed on 17 August 1983, be reversed and that all documents prepared incident to those actions be removed from his records and destroyed. They also stated that Commander, U.S. Army Finance and Accounting Center be advised of the determination and make any adjustment of pay. j. On 19 December 1984, Lieutenant Colonel (LTC) X__ X__X__ instructed the Military Personnel Office (MILPO) Enlisted Records section to terminate all administrative actions stemming from the urinalysis and to lift the bar to reenlistment immediately. k. The Chief of Administrative Law Captain (CPT) X__ X__X__, completed a letter on 11 January 1985, stating that he reviewed the proposed bar to reenlistment and found it legally sufficient (see detailed letter in packet). l. On 16 January 1985, the commanding officer, Colonel (COL) X___ X___ issued a letter approving that the bar to reenlistment be submitted and placed in the applicant’s Military Personnel Records Jacket with the remarks “not recommended for further service” (see detailed letter in packet). m. The applicant was honorably discharged on 18 January 1985. He completed 6 years, 9 months, and 8 days of net active service and 1 year, 11 months, and 12 days of foreign service. His DD Form 214 shows in: * Item 27 (Reenlistment Code) RE-3 paragraph 2-20 AR 601-280 (Personnel Procurement- Army Reenlistment Program) applies to personnel barred to reenlist * Item 4a (Grade, Rate, Rank) specialist (SPC) * Item 4b (Pay Grade) E-4 n. His DD Form 215, dated 23 April 1985, shows Item 27 (RE Code) reflected RE-3, RE-3C. It does not show Restoration of rank to sergeant (SGT). o. His record is void of any documentation regarding the forfeiture of pay for $1004.00. Even though the ABCMR requested for any unfavorable personnel actions and all documents prepared due to this incident be removed and destroyed from his records, it was never completed. 5. By regulation AR 27-10 (Military Justice) states: a. Applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the ABCMR. b. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander. When a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced if the date the punishment of reduction was imposed. c. The Board does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels. d. 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 that clearly and affirmatively injured the substantial rights of the Soldier. 6. By regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program. It provides that once properly filed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority. The ABCMR directed that any and all references to the urinalysis test taken on 17 August 1983, which had been declared unsupportable, be removed from the applicant’s military personnel and medical records and destroyed. That any unfavorable personnel actions (such as letters of reprimand, bar to reenlist, removal from promotion list, revocation of promotion orders, and/or denial of the Good Conduct Medal, which were based solely on the urinalysis test performed on 17 August 1983, be reversed and that all documents prepared incident to those actions be removed from his records and destroyed. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. Evidence of record shows he accepted NJP under Article 15 of the UCMJ for failing to obey a lawful order. The Board agreed there was no error or injustice as the commander had proper authority to render a decision after considering all evidence. The Board determined there is insufficient evidence to grant relief as the reduction in rank was properly administered and all due process rights were afforded to the applicant at the time of the UCMJ being administered. 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 administration of military justice. Chapter 3 provides that NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ. NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted. a. Paragraph 3-28 states "clear injustice" means there exists 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. Clear injustice does not include the fact that the Soldier'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 Soldier. b. Paragraph 3-37a states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal. c. Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted folder in the OMPF will be made by the imposing commander at the time NJP is imposed. The filing decision of the imposing commander is subject to review by superior authority. For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the Army Military Human Resource Records Management Program. It provides that once properly filed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008933 7 1