ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  16 September 2019 

	DOCKET NUMBER:  AR20170013375


APPLICANT REQUESTS: his non judicial punishment (NJP) received on 9 May 1964 
be rescinded.

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
DD Form 149 (Application for Correction of Military 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 that he would like the punishment that he received to be 
rescinded because he believes that it was too harsh and would like it stricken from the 
record.  He believes that the commander of the communication center was overzealous 
in administering punishment.  The commander’s actions effectively ruined his time in the 
Army.

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

	a.  He enlisted in the Regular Army (RA) on 26 July 1963.

	b.  He served in Vietnam from 8 February 1964 to 30 January 1965 and in Thailand 
from 31 January 1965 to 17 July 1966.

	c.  Unit Order Number 19, dated 27 March 1964, shows the applicant was promoted 
to private first class/E-3.

	d.  He accepted non judicial punishment on 9 May 1964 for without proper authority 
in Phu Lam, Vietnam, failed to report for guard duty.  His punishment consisted in part 
reduction to private/E-2.

	e.  Unit Order Number 64, dated 6 September 1964, shows the applicant was 
promoted to the rank of private first class. 

	f.  Special Orders Number 319, dated 29 December 1964, shows the applicant was 
re-deployed from Vietnam with the rank of private first class and the date of rank of 
6 September 1964.

	g.  He was transferred to the U.S Army Reserve on 17 July 1966.  His DD Form 214 
(Armed Forces of the United States Report of Transfer or Discharge) shows that he 
received an honorable character of service with reason and authority as separation 
number 411 (Overseas Return).  

4.  By regulation, applications for removal of an Article 15 from the official records based 
on an error or injustice will be made to the ABCMR.  There must be clear and 
compelling evidence to support the removal of a properly completed, factually valid 
DA Form 2627 from a Soldier’s record by the ABCMR.

5.  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.

BOARD DISCUSSION:

After reviewing the application and all supporting documents, the Board found relief was 
not warranted.  The applicant’s contentions were carefully considered.  Regulatory 
guidance states that once placed 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, such as this Board.  The applicant 
did not provide evidence that clearly exonerates him or shows that there was a clear 
injustice.  Regulatory guidance also prescribes that a Soldier's uncorroborated sworn 
statement will not constitute a basis to support the setting aside of punishment, and a 
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.


  ?
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 nonpunitive administrative measures 
to the fullest extent to further the efficiency of the command before resorting to NJP 
under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which 
nonpunitive 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 3-6 addresses the filing of an NJP and provides, in pertinent part, that 
a commander’s decision whether to file a record of NJP in the performance section of a 
Soldier’s official record is as important as the decision relating to the imposition of the 
NJP itself.  In making a filing determination, the imposing commander must weigh 
carefully the interests of the Soldier’s career against those of the Army to produce and 
advance only the most qualified personnel for positions of leadership, trust, and 
responsibility.  In this regard, the imposing commander should consider the Soldier’s 
age, grade, total service (with particular attention to the Soldier’s recent performance 
and past misconduct), and whether the Soldier has more than one record of NJP 
directed for filing in the restricted section.  However, the interests of the Army are 
compelling when the record of NJP reflects unmitigated moral turpitude or lack of 
integrity, patterns of misconduct, or evidence of serious character deficiency or 
substantial breach of military discipline.  In such cases, the record should be filed in the 
performance section.  

	b.  Paragraph 3-28 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.  NJP 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 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.  

	c.  Applications for removal of an Article 15 from the OMPF based on an error or 
injustice will be made to the ABCMR.  There must be clear and compelling evidence to 
support the removal of a properly completed, facially valid DA Form 2627 from a 
Soldier’s record by the ABCMR.

ABCMR Record of Proceedings (cont)	 AR20170013375
	
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