ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 20 September 2019 DOCKET NUMBER: AR20190002389 APPLICANT REQUESTS: removal of six DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from his Official Military Personnel File (OMPF). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * six DA Forms 2627, dated 3 June 1976, 10 December 1976, 31 March 1977, 7 May 1977, 17 May 1977, and 16 July 1977 FACTS: 1. The applicant did not file within the 3-year time frame as 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. He states: * his signatures were forged on the DA Forms 2627 * evidence in his finance records proves charges brought against him were false * the DA Form 2627, dated 16 July 1977, is false * he refused to sign the DA Form 2627, dated 16 July 1977 3. He enlisted in the Regular Army on 12 November 1975. His signature is shown on his DD Form 4 (Enlistment or Reenlistment Agreement – Armed Forces of the United States). 4. He received nonjudicial punishment on 3 June 1976 for the following offenses: a. absenting himself from his place of duty without authority on or about 20 May 1976 and remaining so absent until on or about 21 May 1976, b. failing to go at the time prescribed to his appointed place of duty without authority on or about 21 May 1976, c. failing to go at the time prescribed to his appointed place of duty without authority on or about 24 May 1976, and d. failing to go at the time prescribed to his appointed place of duty without authority on or about 25 May 1976. e. He signed the DA Form 2627 and did not appeal the findings or punishment. His signature appears to match the signature shown on his DD Form 4. 5. He received nonjudicial punishment on 10 December 1976 for absenting himself from his unit without authority on or about 1 December 1976 and remaining so absent until on or about 3 December 1976. He signed the DA Form 2627 and did not appeal the findings or punishment. His signature appears to match the signature shown on his DD Form 4. 6. He received nonjudicial punishment on 31 March 1977 for wrongfully urinating on the floor of the living quarters of his fellow platoon members on or about 26 March 1977 and being disrespectful in language toward senior noncommissioned officers on or about 26 March 1977. His punishment included reduction in rank/grade to private/E-1. He signed the DA Form 2627 and did not appeal the findings or punishment. His signature appears to match the signature on his DD Form 4. 7. He received nonjudicial punishment on 7 May 1977 for failing to go at the time prescribed to his appointed place of duty without proper authority on or about 3 May 1977. He signed the DA Form 2627 and did not appeal the findings or punishment. His signature appears to match the signature shown on his DD Form 4. 8. He received nonjudicial punishment on 17 May 1977 for absenting himself from his unit without authority on or about 0300, 11 May 1977, and remaining so absent until on or about 2300, 11 May 1977. He signed the DA Form 2627 and did not appeal the findings or punishment. His signature appears to match the signature shown on his DD Form 4. 9. He received nonjudicial punishment on 16 July 1977 for being disrespectful in language toward his superior noncommissioned officer on or about 1 July 1977. He signed the DA Form 2627. His signature appears to match his signature shown on his DD Form 4; however, he refused to sign indicating his decision to appeal or submit matters for consideration by the next superior authority. 10. Court-martial charges were preferred against him on 7 September 1977 for the following offenses: a. causing a breach of the peace by entering a club and using contemptuous language toward those present in the club on or about 24 August 1977, b. unlawfully striking Corporal on the face with a sharp object on or about 24 August 1977, c. being disrespectful in language toward a superior noncommissioned officer on or about 22 August 1977, and d. willfully disobeying a lawful command from a superior commissioned officer on or about 22 August 1977. 11. Court-martial charges were preferred against him on 23 September 1977 for: a. using disrespectful language toward Captain a superior commissioned officer on or about 23 September 1977; b. using disrespectful language toward Sergeant First Class a superior noncommissioned officer, on or about 23 September 1977; c. using disrespectful language toward Staff Sergeant a superior noncommissioned officer, on or about 23 September 1977; d. failing to obey a lawful order from Sergeant First Class on or about 23 September 1977; and e. wrongfully communicating a threat to injure Sergeant First Class on or about 23 September 1977. 12. Court-martial charges were preferred against him on 24 September 1977 for the following offenses: a. attempting to escape from the lawful custody of Captain by leaving the orderly room and running down the street on or about 23 September 1977; b. wrongfully communicating a threat to Captain on or about 23 September 1977; c. having been duly restricted to company area limits, breaking restriction on or about 23 September 1977; and d. wrongfully communicating a threat to injure Sergeant First Class on or about 23 September 1977. 13. On 6 October 1977, he voluntary requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 14. He was discharged in the rank/grade of private/E-1 on 26 October 1977 under the provisions of Army Regulation 635-200, chapter 10. He completed 1 year, 11 months, and 15 days of net active service. His DD Form 214 (Report of Separation from Active Duty) shows his reason for separation as for the good of the service in lieu of court- martial. His service was characterized as under other than honorable conditions. 14. On 19 May 1980, the Army Discharge Review Board denied his request for an upgrade of his discharge. The board determined the applicant's discharge was proper and equitable. 15. On 5 November 2009, the ABCMR denied the applicant's request to upgrade his discharge to general under honorable conditions. The Board determined he failed to submit evidence that his record was in error or unjust. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, and evidence in the records. The Board considered the applicant’s statements, his record of service, the frequency and nature of his misconduct, the signatures on other documents in his records, the absence of finance documents referred to by the applicant, and the reason for his separation. The Board found insufficient evidence of a difference on the signatures in his records or mitigation for the misconduct that resulted in non-judicial punishment or court-martial charges. Based on a preponderance of evidence, the Board determined that the DA Forms 2627 in his records were not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. 8/10/2020 CHAIRPERSON 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-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. Chapter 3 implements and amplifies Article 15 of the UCMJ and chapter XXVI of the Manual for Courts-Martial. a. Paragraph 3-4 (Personal Exercise of Discretion) states a commander will personally exercise discretion in the nonjudicial punishment process by: (1) evaluating the case to determine whether proceedings under Article 15 should be initiated; (2) determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and (3) determining the amount and nature of any punishment, if punishment is appropriate. b. Paragraph 3-6 (Filing Determination) states a commander's decision whether to file a record of nonjudicial punishment in the performance folder of a Soldier's OMPF is as important as the decision on whether to impose nonjudicial punishment itself. c. Paragraph 3-37 (Distribution and Filing of DA Form 2627 and Allied Documents) states the original DA Form 2627 will be filed in the Soldier's OMPF. The decision to file the original DA Form 2627 in the performance folder or the restricted folder in the OMPF will be made by the imposing commander at the time punishment is imposed. d. Paragraph 3-41 (Filing of records of punishment imposed prior to 1 November 1982) prescribes, records of nonjudicial punishment presently filed in either the performance or restricted section of the OMPF will remain so filed, subject to other applicable regulations. e. Table 3-2 (Removal of records of nonjudicial punishment form military personnel files) covers procedures for enlisted Soldiers (sergeant and above) and commissioned officers to petition to the Department of the Army Suitability Evaluation Board for transfer of records of nonjudicial punishment from the performance to the restricted portion of the OMPF. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 10 provided that an individual who committed an offense or offenses, the punishment for which under the UCMJ and the Manual for Courts-Martial, included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service. The request could be submitted at any time after charges were preferred and must have included the individual's admission of guilt. If the member elected to submit a request for discharge for the good of the service after receiving counseling, he would personally sign a written request certifying that he had been counseled, that he understood his rights, that he could receive a discharge under other than honorable conditions, and that he understood the adverse nature of such a discharge and the possible consequences. Although an honorable or general discharge was authorized, a Discharge Certificate under Other than Honorable Conditions was normally furnished to an individual who was discharged for the good of the service.