IN THE CASE OF: BOARD DATE: 11 March 2021 DOCKET NUMBER: AR20200001030 APPLICANT REQUESTS: * in effect, removal of DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 22 January 1979, from his Official Military Personnel File (OMPF) * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-Authored Statement FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 he is requesting the Article 15 for disobeying a lawful order in radar repair training be removed from his service record. He believes he did not disobey a lawful order, but was rather distracted since he recently returned from his Christmas vacation. The instructor did not give him a second chance and he was under the impression it was part of the classroom training. The effects of actions taken at that time are still impacting him today. He also provides a personal statement outlining delays in his application and asks that his request be considered by the Board. 3. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 15 August 1978. b. His DA Form 2-1 (Personnel Qualification Record) shows two periods of absence without leave (AWOL). * 2 February 1979 to 5 February 1979 (4 days) * 15 February 1979 to 18 March 1979 (32 days) c. Three cadre statements detailed the events that took place on 12 January 1979 wherein the applicant refused to take part in training after numerous requests. d. On 17 January 1979, the Chief, Rear Division provided a DA Form 2496 (Disposition Form) which stated the applicant indicated he did not desire to continue in the Weapons Support Radar Repair Course. His attitude had become counterproductive to the instructional effort and it was recommended that the applicant be disciplined for violation of Article 91, UCMJ. e. On 18 January 1979, a Relief of Student request was submitted which noted the applicant was awaiting disciplinary action and had indicated a desire to be relieved from the course. Repeated counseling failed to motivate the applicant to the degree necessary for continuation in the course. The applicant was not failing the course at the time; however, his conduct had interfered with the presentation of instruction. f. On 22 January 1979, he accepted nonjudicial punishment for willfully disobeying a lawful order. His punishment included forfeiture of $97.00 pay and correctional custody for 7 days. g. The applicant provided a personal statement on 22 January 1979 wherein he reiterated that he had not violated a lawful order. He was told to repair a radar, but felt he could not do so because he had not been properly trained on how to utilize the equipment. The instructor did not provide him with the training and although he had manuals that outlined the instructions, he could not learn by “merely reading.” He requested the charges be dropped. h. On 29 January 1979, a Disposition Form was provided to the applicant’s commander. His performance at the Correctional Custody Facility (CCF) was described as unsatisfactory and supporting documentation was provided. i. On 30 March 1979, he accepted nonjudicial punishment for being AWOL from \ 15 February 1979 to 19 March 1979. His punishment included forfeiture of $97.00 pay, 14 days’ restriction, and 14 days’ extra duty. j. On 5 April 1979, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions of paragraph 5-31, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), under the Expeditious Discharge Program (EDP). k. On 6 January 1981, the applicant waived his right to consult with counsel and acknowledged: * notification of his proposed discharge and voluntary consent to discharge * he waived his right to submit a statement on his own behalf * he may encounter substantial prejudice in civilian life if his service is characterized as under honorable conditions * he was afforded an opportunity to consult with counsel * he may voluntarily withdraw his request for discharge prior to the date the discharge authority approves his discharge l. The immediate commander initiated separation action against the applicant under the provisions of paragraph 5-31, Army Regulation 635-200 for expeditious discharge. He recommended that he be furnished an Honorable Discharge Certificate. m. Consistent with the chain of command recommendations, the separation authority approved the discharge recommendation for immediate separation under the provisions of paragraph 5-31, Army Regulation 635-200. He would be issued an Honorable Discharge Certificate. n. On 16 April 1979, he was honorably discharged from active duty. His DD Form 214 (Report of Separation from Active Duty) shows he completed 6 months and 27 days of active service with 36 days of lost time. It also shows he was awarded or authorized: * Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16) * Expert Marksmanship Qualification Badge with Hand Grenade 6. By regulation (AR 15-185), an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. 7. By regulation (AR 27-10), 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. Nonjudicial punishment 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 UCMJ, Article 15. 8. By regulation (AR 600-8-104), once properly filed in the Army Military Human Resource Records Management, documents will not be removed from the record unless directed. An Article 15 is filed in the performance section of the OMPF, unless otherwise directed by the imposing commander/officer. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his military service record and documents provided by the applicant. The Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. 2. The Board noted that removal of an Article 15/ UMCJ is generally not warranted unless it is factually incorrect. However, the Board determined based on the evidence in the applicant’ record the incident did occur and the applicant acknowledged with his acceptance of the Article 15. The Board found insufficient evidence to remove the Article 15. Therefore, relief was denied. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XXX 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, United States 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. 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 (MCM) and the rules for courts-martial contained in the MCM. a. Paragraph 3-28 (Setting Aside and Restoration), states 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. Nonjudicial punishment (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 UCMJ, Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier’s records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or 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. 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. Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. b. Paragraph 3-43 (Transfer or Removal of Records of Nonjudicial Punishment) states enlisted Soldiers (SGT and above) and commissioned officers may request the transfer of a record of nonjudicial punishment from the performance section of their OMPF to the restricted section under the provisions of this regulation. To support the request, the person must submit substantive evidence that the intended purpose of UCMJ, Article 15 has been served and that transfer of the record is in the best interest of the Army. Requests should be sent to the ABCMR to correct an error or remove an injustice only after other available means of administrative appeal have been exhausted. 4. Army Regulation 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the AMHRR, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board. Table B-1 covers authorized documents. Army Personnel Records Division (APRD), will update the list of authorized documents for filing in the AMHRR quarterly. The new list of authorized documents will supersede the list in Table B-1, Appendix B of AR 600-8-104. The latest update, dated 11 January 2021, states Article 15’s for E-4 and below: * File only if it affects Rank or Pay. * Only file the Article 15 itself; no allied or supporting documents. Captured for the sole purpose of audit readiness. * Access to this document is limited to System Administrators only. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001030 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1