IN THE CASE OF: BOARD DATE: 8 February 2022 DOCKET NUMBER: AR20210009835 APPLICANT REQUESTS: in effect, reconsideration of his previous request for restoration of rank to staff sergeant (SSG)/E-6. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal Statement * Authority to Release Information FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in: * Docket Number AR20060009889, on 18 January 2007 * Docket Number AR20160015092, on 15 May 2019. 2. The applicant states he feels his action on 13 April didn't constitute dereliction of duties. The statement he submitted with the Article 15 described his action on that day. He feels that if he would not have tried to get the tractor-trailer back in the convoy, then he would have been derelict in his duties. Thus, he feels that by having his jeep turned around, he was properly performing his duties. He feels that as an NCO, some type of verbal admonishment should have been forthcoming before such a drastic punishment such as this is initiated. It is his honest belief that this punishment is being imposed for some other reason than the alleged infraction. 3. A review of the applicant’s service record shows the following: a. He was inducted into the Army of the United States on 24 April 1963. He held a supply specialty. He was discharged on 26 April 1964 for immediate enlistment in the Regular Army (RA). b. He enlisted in the RA on 27 April 1964 and reenlisted on 1 May 1967. He served in a variety of stateside and/or overseas assignments, including Germany, Vietnam, and Korea. c. His DA Form 20 (Enlisted Qualification Record) reflects he was advanced to specialist five (SP5)/E-5 on 28 September 1966 and to staff sergeant (SSG)/E-6 on 30 December 1968. d. He accepted non-judicial punishment (NJP) on: (1) 6 July 1968 for failure to go at time prescribed to appointed place of duty. His punishment consisted of a forfeiture of pay. (2) 28 April 1970 for failure to obey an order or regulation. His punishment included reduction to SGT/E-5 (suspended for two months) and forfeiture of $50.00 per month for two months. He appealed the punishment and it was granted in part in that the word “willfully” be set aside. It has been reported that on or about 08:30 hours on 13 April 1970, approximately one mile north of Phu Cong on Highway QL13, you were derelict in the performance of your duties in that you willfully through neglect suffered a 1/4th ton truck of value of about $3,196, military property of the United States, to be damaged in an accident. This is a violation of Article 92, UCMJ. (3) 21 August 1970 for wrongfully and falsely having in his possession with intent to deceive an official pass; wrongfully possessing marijuana; failure to obey an order or regulation. His punishment included reduction to the grade of SGT/E-5 and forfeiture of $100.00 per month for two months. He appealed the punishment and it was denied. (4) 20 April 1971 for without authority go from appointed place of duty without being properly relieved and for with intent to deceive sign an official record. His punishment consisted of a forfeiture of pay. d. On 16 January 1973, he extended his enlistment for 24 months to satisfy the requirements of qualitative management. He again extended on 7 April 1975 for 11 months to meet maximum retention point. He extended on 22 March 1976 for one month while awaiting review of QMP appeal. e. On 28 May 1976, he was honorably discharged from active duty. His DD Form 214 (Report of Separation from Active Duty) for the period 1 May 1967 to 28 May 1976, as amended by a DD Form 215 (Correction to DD Form 214) shows he was discharged for completion of required service by authority of Army Regulation 635-200 (Personnel Separations), chapter 2, in the rank of SGT/E-5. His DD Form 214 showed in: * item 6a (Grade, Rate or Rank) and 6b (Pay Grade) shows SGT and E-5 * item 7 (Date of Rank), 27 August 1970 f. On 10 August 1984, he enlisted in the Washington Army National Guard (WAARNG) in the pay grade of E-5. g. Orders number 277-80, dated 4 October 1992 honorably discharged the applicant from the WAARNG and assigned him to the Retired Reserve effective 5 October 1992. He was issued a NGB Form 22 (Report of Separation and Record of Service). It shows his rank as sergeant/E-5. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Board members noted the he accepted NJP on 28 April 1970 for failure to obey an order or regulation. His punishment included reduction to SGT/E-5 (suspended for two months) and forfeiture of $50.00 per month for two months. But that reduction was suspended. It was the later Article 15 on 21 August 1970 for wrongfully and falsely having in his possession with intent to deceive an official pass; wrongfully possessing marijuana; and failure to obey an order or regulation that resulted in his reduction to SGT. There is no evidence he was promoted back to SSG and no evidence provided by him to support restoring his former rank. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XX: XX: XX: 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 to amend the decisions of the ABCMR set forth in Docket Number AR20060009889, on 18 January 2007, and AR20160015092, on 15 May 2019. 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: 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 non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to non-judicial punishment (NJP) under the Uniform Code of Military Justice. Use of NJP is proper in all cases involving minor offenses in which non-punitive 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 3-8e. Reduction in grade. Promotion authority. The grade from which demoted must be within the promotion authority of the commanding officer who imposes the punishment or of any officer subordinate to the one who imposes the reduction. For the purposes of this regulation, a commanding officer has "promotion authority," within the meaning of Article 15(b), if he has the general authority to appoint to the grade from which reduced or any higher grade. b. Paragraph 3-17 suspensions. Ordinarily, the purpose of suspending punishment will be to grant to a deserving member a probational period during which he may show that he is deserving of remission of the suspended portion of his nonjudical punishment. If, because of further misconduct by the member within this period, it is determined that remission of the suspended punishment is not warranted, the suspension may be vacated and the suspended portion of the punishment executed. Action vacating a suspension will be recorded in accordance with notes 10 and 11, Part III, DA Form 2627 (Record of Proceedings). Unless the suspension is vacated prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action. c. Paragraph 3-20 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. d. Paragraph 3-21 limitations with respect to reduction in grade. An unsuspended reduction in grade, imposed as NJP, becomes fully executed at the time it is imposed. Accordingly, there can be no remission of an unsuspended reduction. e. Paragraph 3-22 who may act on an appeal. An appeal under Article 15 will be acted upon by the authority next superior to the officer who imposed the punishment if the person punished is still of the command of that officer at the time he appeals, but if the punishment has been imposed under a delegation of the superior's power to impose NJP (see para 128, MCM, 1969) the appeal will be acted upon by the authority next superior to him. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210009835 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1