ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 27 August 2019 DOCKET NUMBER: AR20170015462 APPLICANT REQUESTS: restoration of his rank of Sergeant (SGT)/E-5 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * self-authored statement 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, in effect, he was reduced in rank from Sergeant (SGT)/E-5 to Specialist (SPC)/E-4, as a result of an Article 15 for an incident that was not his fault and totally out of his control. He recounts the incident that took place sometime in March 1993, which led to the imposition of his Article 15. The key points are as follows: a. While stationed in David, Panama, he served as the noncommissioned officer in charge (NCOIC) of airport operations. While he was asleep, one of the Soldiers in his platoon decided he wanted to go into town. The Panamanian Air Force came into his room to warn him the Soldier had gotten a hold of the keys to one of the vehicles. He attempted to follow the Soldier, but the Soldier was too far ahead. b. An hour later, around 3:00am, he went back to the building in hopes that the Soldier returned; however, he did not. The Panamanian Air Force came in and informed him that the Soldier had been in an accident. When he asked the Soldier if he was okay, he was but was also totally drunk. So, he let the military police handle the situation. c. Because of this incident, his career was destroyed. The company wanted somebody to be punished and that somebody was him. He was given an Article 15 and his punishment consisted of 15 days of extra duty and a reduction in rank. In addition to not being given proper representation, his superiors intimidated him through the use of threats of being court-martialed and imprisoned. d. He tried his best to stop the Soldier, but he couldn’t because he lost the Soldier in the city. He also states that the Soldier was much older than him and that he also felt the base commander was totally against him because the other Soldier was Hispanic. He was the “scape goat.” e. He hesitated for a long time to submit a request for an appeal due to feeling completely betrayed by the command. However, 24 years later, this incident continues to cause him a lot of suffering and anguish in his life. 3. A review of the applicant’s service record shows: a. The complete facts and circumstances surrounding the applicant’s military service are not available to the Board for review with this case. b. However, he enlisted in the Regular Army on 29 October 1985 with the military occupational specialty of 88H (Cargo Specialist). c. DA Form 4187 (Personnel Action), shows he was reduced to Specialist Four, effective 3 May 1993, in accordance with Army Regulation 600-8-19, paragraph 6-12(b) and a Field Grade Article 15, dated 3 May 1993. d. DA Form 4187, dated 7 October 1992 (sic), shows the applicant requested an early separation, under the provisions of TAPC-PDT-S message date and time group (DTG) 050500Z August 1992, Subject: Implementing Instructions for FY93 Enlisted Voluntary Release Program with VSI/SSB. The requested separation date is 28 February 1993. e. He was discharged from active duty on 29 October 1993. His DD Form 214 shows he was released under the provisions of AR 635-200, paragraph 16-8, reduction in force, and his service was characterized as honorable. It also shows his rank as Specialist (SPC) /E-4. 4. Army Regulation (AR) 600-8-19 (Army Enlisted Promotions), prescribes the enlisted promotions and reductions function of the military personnel system. It is linked to AR 600–8 and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions. Additionally, it precludes promoting the soldier who is not productive or not best qualified, thus providing an equitable system for all soldiers. 5. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial, United States, 1984, hereafter referred to as the MCM and the Rules for Courts-Martial (R.C.M.) contained in the MCM. 6. The Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board found that the applicant was reduced by way of an Article 15 under the UCMJ. The Board does not usually reexamine the guilt determination of commanders exercising UCMJ authority. The Board agreed the UCMJ authority made a determination of guilt based upon the preponderance of evidence, and reduced him in accordance with his authority provided by regulatory guidance. 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. AR 600-8-19 (Army Enlisted Promotions), prescribes the enlisted promotions and reductions function of the military personnel system. It is linked to AR 600–8 and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support promotions and reductions. Additionally, it precludes promoting the soldier who is not productive or not best qualified, thus providing an equitable system for all soldiers. 3. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial, United States, 1984, hereafter referred to as the MCM and the Rules for Courts-Martial (R.C.M.) contained in the MCM. a. Paragraph 3-19a, states whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander. Additionally, as NCOs are often in the best position to observe a Soldier undergoing punishment and evaluate daily performance and attitude, their views-on clemency should be given careful consideration. b. Paragraph 3-19b(6)(c), states when a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced is the date the punishment of reduction was imposed. If a suspension of the reduction is vacated, the date of rank in the grade to which reduced as a result of the action is the date the punishment was originally imposed, regardless of the date the punishment was suspended or vacated. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015462 3 1