IN THE CASE OF: BOARD DATE: 21 June 2023 DOCKET NUMBER: AR20220011368 APPLICANT REQUESTS: * In effect, removal of derogatory personnel information by: * Rescinding that portion of Special Court-Martial Order Number 7, dated 26 January 1977, which reduced him to private (PV1)/E-1, and then restoring his rank/grade to private first class (PFC)/E-3 * Removing the comment in item 27 (Remarks) of his DD Form 214 (Report of Separation from Active Duty) that states, “Time lost under 10 USC 972 – 24 days: From 3-26 Jan 77” * Upgrade of his rank/grade to what it should have been at time of separation APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter of Commendation * Three DA Forms 4187 (Personnel Action) * Two DA Forms 2496 (Disposition Form) * Reassignment Orders * DA Form 2627 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)) * Indorsement to Separation Orders * Memorandum FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, United States Code (USC), section 1552 (b) (Correction of Military Records: Claims Incident Thereto). 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, while on active duty, his command wrongfully accused him of an offense he did not commit; when the command discovered the mistake, they immediately released him from confinement. a. Although his commander removed the incident from the applicant’s official military personnel file (OMPF), the applicant’s rank was never restored and the record of lost time was not removed. As a result, the applicant has suffered both mentally and physically, in that he has had to relive his negative experiences every time someone required him to explain the entries on his DD Form 214. b. On his DD Form 149, in item 13 (Are Any of the Following Issues/Conditions Related to Your Request), the applicant checked the block for "PTSD" (post-traumatic stress disorder). c. In support of his request, the applicant provides documents from his OMPF; none indicate the applicant's commander took action to remove documents based on the applicant being wrongfully accused of a crime. 3. A review of the applicant's service record reveals the following: a. On 22 August 1975, the applicant enlisted into the Regular Army for 4 years. While in basic combat training (BCT), the applicant's BCT leadership awarded him a letter of commendation for his selection as "Colonel's Orderly." In December 1975, the applicant's advanced individual training (AIT) command recognized him as the AIT "Honor Graduate"; the applicant received a letter of commendation and a training certificate announcing his designation as the honor graduate. Effective 5 December 1975, the applicant's leadership promoted him to PFC. b. Upon completion of initial entry training and the award of military occupational specialty (MOS) 62F (Lifting/Loading Equipment Operator), orders assigned the applicant to an engineer battalion at Fort Benning, GA; he arrived at this new unit, on 6 January 1976. c. On 7 December 1976, a special court-martial convicted the applicant of UCMJ violations. (1) The applicant's command had charged him with two specifications of Article 134 (General Article – Wrongful Possession and Sale of Marijuana), accusing the applicant of possessing an ounce of marijuana and wrongfully selling marijuana; the applicant pleaded guilty to both specifications, and the court found him guilty. (2) The court sentenced the applicant to 127-days' confinement, forfeiture of $100 per month for 4 months, and reduction from PFC to private (PV1)/E-1. On 7 December 1976, military authority deferred the applicant's confinement sentence, and then rescinded that deferment, effective 3 January 1977; on 3 January 1977, the applicant entered military confinement. (3) On 26 January 1977, the special court-martial convening authority approved the applicant sentence, but directed the suspension of any confinement exceeding 30 days. On 27 January 1977, after 24 days, military authority released the applicant from confinement and returned him to duty. d. Effective 10 February 1978, orders promoted the applicant to PFC. On 28 August 1978, the applicant accepted nonjudicial punishment under Article 15, UCMJ for failing to report to "Company inspection of Battalion Guards." e. On 14 September 1979, orders honorably released the applicant from active duty due to reaching his expiration term of service (ETS); his DD Form 214 shows he completed all 4-years of his enlistment contract. * Item 9c (Authority and Reason) – Chapter 2 (Separation of Enlisted Personnel), Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), Separation Program Designator (SPD) "LBK" (Completion of Required Service (ETS) * Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) – Three marksmanship qualification badges * Item 27 (Remarks) – “Time lost under 10 USC 972 – 24 days: From 3-26 Jan 77” f. The applicant's record is void of documentation indicating his command later rescinded or removed his court-martial conviction; in addition, his available service record contains a copy of his special court-martial order, and his record includes a DA Form 2-2 (Insert Sheet to DA Form 2 – Record of Court-Martial Conviction), which shows the applicant's special court-martial conviction, on 7 December 1976. 4. AR 600-37 (Unfavorable Information), in effect at the time, stated once an official document containing adverse information had been accepted by Headquarters, Department of the Army (HQDA) for inclusion in an individual's OMPF, the individual had the burden of proving the negative information was unjust or untrue. The individual could appeal the inclusion of the adverse information in his/her OMPF but had to submit substantive evidence that supported any claims of injustice; it was not sufficient to merely allege the information was untrue or unjust. 5. According to chapter 7 (Promotion and Reduction), AR 600-200 (Enlisted Personnel Management System), in effect at the time, company commanders could promote Soldiers to rank/grades private (PV2)/E-2 through specialist four (SP4)/E-4; organizations authorized a commander in the grade of lieutenant colonel could promote Soldiers to sergeant (SGT)/E-5 and staff sergeant (SSG)/E-6. a. Criteria for promotion to SP4 included having 24-months' time-in-service, completing 6-months' time-in-grade as a PFC, holding a promotable status, and having an appropriate security clearance. b. Promotions to SGT and SSG were semi-centralized, meaning units recommended Soldiers for promotion and awarded promotion points in accordance with the regulation's criteria, but HQDA authorized the promotion by establishing monthly promotion cut-off scores by MOS. HQDA based its monthly cut-off scores on the needs of the Army for a specific MOS and grade level. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicants petition and available military records, the Board determined there was insufficient evidence of in-service mitigating factors nor did the applicant demonstrate by a preponderance of evidence that procedural error occurred that was prejudicial to the applicant and by a preponderance of evidence that rescinding the portion of Special Court-Martial Order Number 7, dated 26 January 1977, which reduced him to private (PV1)/E-1, and then restoring his rank/grade to private first class (PFC)/E-3 is warranted. In addition, the Board agreed the applicant records accurately reflect his time lost due to his confinement. 2. The Board noted that court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. Therefore, the Board found no error or injustice and denied relief. ? 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 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. Title 10, U.S. Code, section 1552(f), provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. AR 600-37 (Unfavorable Information), in effect at the time, stated once an official document containing adverse information had been accepted by Headquarters, Department of the Army (HQDA) for inclusion in an individual's OMPF, the individual had the burden of proving the negative information was unjust or untrue. The individual could appeal the inclusion of the adverse information in the OMPF but had to submit substantive evidence that supported his/her claims of injustice; it was not sufficient to merely allege the information was untrue or unjust. 4. AR 600-200, chapter 7, in effect at the time, stated company commanders could promote Soldiers from PV1 through specialist four (SP4)/E-4; organizations authorized a commander in the grade of lieutenant colonel could promote Soldiers to sergeant (SGT)/E-5 and staff sergeant (SSG)/E-6. a. Criteria for promotion to SP4 included having 24-months' time-in-service, completing 6-months' time-in-grade as a PFC, being in a promotable status, and having an appropriate security clearance. b. Promotions to SGT and SSG were semi-centralized, meaning units recommended Soldiers for promotion and awarded promotion points in accordance with the regulation's criteria, but HQDA authorized the promotion by establishing monthly promotion cut-off scores by MOS. HQDA based its monthly cut-off scores on the needs of the Army for a specific MOS and grade level. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220011368 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1