ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 September 2019 DOCKET NUMBER: AR20170019593 APPLICANT REQUESTS: restoration of his rank/grade as specialist four (SP4)/E-4 with retroactive pay and allowances. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 20 November 2017 * Chief, Examination and New Trials Division, U.S. Army Judiciary, letter, dated 10 May 1976, subject: Court-Martial Case of [Applicant] * Headquarters, Department of the Army, Special Court-Martial Order Number 38, dated 24 May 1976 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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, Headquarters, Department of the Army, Special Court-Martial Order Number 38, dated 24 May 1976, restored all of his rights, privileges, and property which included restoration of his rank/grade of SP4/E-4 with retroactive pay and allowances. 3. The applicant enlisted in the Regular Army on 5 October 1973 in the rank/grade of private (PVT)/E-1. 4. His promotions were as follows: * private (PVT)/E-2 on 5 February 1974 * private first class (PFC)/E-3 on 8 November 1974 * SP4/E-4 on 8 August 1975 5. The original Headquarters, 2d Brigade, 2d Infantry, Special Court-Martial Order Number 24, dated 10 December 1975, shows that while serving in the rank of SP4, the applicant was charged with the following: a. Charge I: Violation of the Uniform Code of Military Justice (UCMJ), Article 90. Specification: On or about 2220 hours, 19 October 1975, strike First Lieutenant X___ X___, his superior commissioned officer, who was in the execution of his office, in the left eye with a closed fist. b. Charge II: Violation of the UCMJ, Article 128. Specification: On or about 2220 hours, 19 October 1975, strike a sentinel in the execution of his duty, in the face with a closed fist. c. Charge III: Violation of the UCMJ, Article 95. Specification: On or about 0220 hours, 19 October 1975, resist being lawfully apprehended by PVT/E-2 X___ X. X___, a military policeman. d. He pled not guilty and he was found: * Specification and Charge I: Guilty, * Specification and Charge II: Guilty except the words "sentinel in the execution of his duty" to the excepted words: Not Guilty; to the Charge: Guilty * Specification and Charge III: The Military Judge granted a motion by the defense counsel for a finding of Not Guilty e. The court sentenced him to be confined at hard labor for 55 days; forfeiture of $240.00 pay per month for 2 months; and reduction to the lowest enlisted grade of PVT/E-1. f. The convening authority approved his sentence and ordered it executed, but the execution of the portion thereof adjudging confinement was suspended for 6 months, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted with further action. The service of the sentence to confinement at hard labor for 55 days was deferred on 4 November 1975. g. A corrected copy of this order shows, in part, the findings for Specification and Charge II was changed to read: "Of the Specification and Charge II: Guilty except the words "a sentinel in the execution of his duty." Of the excepted words: Not Guilty: Of the Charge: Guilty." 6. Headquarters, 2d Infantry Division, Special Orders Number 065, dated 5 April 1976, reassigned the applicant to the U.S. Army Transfer Point, Oakland Army Base, Oakland, CA, on 10 April 1976. This order shows the applicant's rank at PV1 (private/E-1), his separation authority as Army Regulation 635-200, paragraph 5-37, and his expiration of term of service as 22 October 1976. 7. On 10 May 1976, the Chief, Examination and new Trials Division, U.S. Army Judiciary, advised the applicant that the Judge Advocate General had granted relief in his case and a draft order, which when published would officially reflect the relief granted, was provided to him. 8. Headquarters, Department of the Army, Special Court-Martial Order Number 38, dated 24 May 1976, shows that pursuant to Article 96 of the UCMJ, * the findings of guilty of Charge II and its specification were vacated and set aside by the Judge Advocate General on 6 May 1976; Charge II and its specification were dismissed * All rights, privileges, and property of which the accused had been deprived by virtue of that portion of the findings of guilty so set aside were to be restored * on reassessment of the approved sentence on the basis of the foregoing action, modification thereof was not warranted 9. Headquarters, U.S. Army Armor Center and Fort Knox Special Orders 74-1, dated 15 October 1976, directed his release from active duty and assignment to the U.S. Army Reserve Component Personnel and Administration Center (Reinforcement), St. Louis, MO, effective 27 October 1976. This order shows is rank as PV1. 10. On 27 October 1976, the applicant was honorably released from active duty. His DD Form 214 (Report of Separation from Active Duty) shows in: * Item 6a (Grade, rate or rank), his rank as PV1 * item 6b (Pay Grade), his grade as E-1 11. His records are void of any evidence his guilty finding of Specification and Charge I or the portion of his sentence which directed his reduction to PVT/E-1 was dismissed or set aside. Additionally, his records are void of any evidence he was promoted after his reduction to PVT/E-1. ? BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. Although the Judge Advocate General dismissed one of the charges against the applicant, the Judge Advocate General also determined that the dismissal did not warrant modification of the approved sentence. As such, the applicant remained sentenced to reduction to E-1, and that sentence was properly executed. The record shows no error or injustice in his reduction to E-1. 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, U.S. Code, 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 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. The Manual for Courts-Martial provides the maximum punishments allowed for offenses in which soldiers are found guilty at trial by court-martial. The Manual for Courts-Martial, Rules for Courts-Martial, Rule 1108(b), provides that the convening authority may, after approving the sentence, suspend the execution of all or any part of the sentence of a court-martial, except for a sentence of death. 3. Army Regulation 624-200 (Promotions, Demotions, and Reductions – Appointment and Reduction of Enlisted Personnel), section VI (Reductions), in effect at the time, shows a Soldier may be reduced one or more grades by a court-martial or by a commander for inefficiency. A reduction will be effective as ordered executed in the court-martial order. If sentence is imposed by a summary court, the reduction becomes effective upon being ordered executed. 4. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-37, in effect at the time, stated personnel whose performance of duty, acceptability for the Service, and potential for continued effective service fall below the standards required for enlisted personnel in the US Army may be discharged. ABCMR Record of Proceedings (cont) AR20170019593 4 1