IN THE CASE OF: BOARD DATE: 21 February 2023 DOCKET NUMBER: AR20220006897 APPLICANT REQUESTS: In effect, removal of his nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ), dated 19 May 1978. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge) in lieu of DD Form 149 * personal statement FACTS: 1. The applicant did not file within the 3-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: a. He was investigated by the Criminal Investitive Division (CID) with significant harassment due to his race in the investigation of theft of Government weapons. He believes he was questioned and tormented more than anyone else, his transfer orders were placed on hold, and he was discriminated against because he was black. The perpetrator was white. Even after two other Soldiers told the truth, he received NJP that took away his E-4 pay grade. b. He is still overwhelmed with the nightmare of the torture and harassment by the CID agent, the threats of incarceration for something he did not have anything do with, and the coverup by his command. He suffers with nightmares and the stress caused by the situation. He is attempting to track down information on the incident because he does not believe that the NJP for missing formation warranted the holding of his transfer and reduction in grade. 3. On his DD Form 293, the applicant notes post-traumatic stress disorder (PTSD) is related to his request. He did not provide any evidence of this diagnosis. 4. The applicant enlisted in the Regular Army on 31 August 1976, for 3 years. He completed training and was awarded military occupational specialty 11C (Indirect Fire Infantryman). The was promoted to specialist four/E-4 on 4 January 1978. 5. The available recode contains no actual documentation of the theft of the firearms described by the applicant. It does contain a cover letter issued by the Fort Sill Field Office, Sixth Region, dated 9 March 1978, indicating a CID report was forwarded to the command for information and any action deemed appropriate. It required the command to reply to CID on any administrative or judicial action or lack thereof taken. However, the letter is a generic one and does not specifically name the applicant. 6. On 16 May 1978, the applicant’s commander notified him that he was considering whether he should be punished under Article 15 for failing to go at the time prescribed to his appointed place of duty on 6 May 1978. 7. The applicant consulted with counsel. He declined trial by a court-martial and indicated he will present matters in his own defense. He elected a closed hearing. 8. On 16 May 1978, the commander found him guilty of missing morning formation on or about 6 May 1978. His punishment was reduction to E-3 and 14 days extra duty. The applicant elected not to appeal. 9. On 19 May 1978, the applicant’s commander again notified him that he was considering whether he should be punished under Article 15 for knowing that another Soldier stole a .45 caliber pistol, the property of the U.S. Government, and in order to prevent the punishment of the other individual by not revealing under direct interrogation the true circumstances of the violation as told to him by the accused. 10. The applicant consulted with counsel. He declined trial by a court-martial and indicated he will present matters in his own defense. He elected a closed hearing. 8. On 25 May 1978, the commander found him guilty of on or about 10 February 1978, in order to prevent the punishment of Private First Class for the theft of a Government .45 caliber pistol, the applicant failed to revel under direct interrogation the true circumstances of that theft as told to him by the accused. His punishment was forfeiture of $100.00. The applicant elected not to appeal. 9. The applicant served in the Canal Zone from on or about 27 June 1978 through 3 August 1979. He was again promoted to E-4 on 1 December 1978. 10. The applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) on 30 August 1979 in the grade of E-4. His DD Form 214 (Report of Separation from Active Duty) shows he was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 2, with separation program designator LBK [involuntary discharge at end of obligated service]. He was credited with 3 years of net active service this period. 9. The Department of the Army is not the custodian of the documentation the applicant is attempting to obtain in regard to the weapons theft. The official custodian of his record is the National Archives and Records Administration (National Personnel Records Center, Military Personnel Records, 1 Archives Drive St. Louis, MO 63138), U.S. Army Crime Records Center (27130 Telegraph Road, Quantico, VA 22134), and/or the U.S. Army Criminal Investigation Command, Fort Sill, Oklahoma 73503. 10. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting in effect removal of his nonjudicial punishment (NJP), dated 19 May 1978. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted in the Regular Army on 31 August 1976; 2) On 19 May 1978, the applicant accepted NJP for failing to revel under direct interrogation the true circumstances of the theft of a Government .45 caliber pistol to prevent the punishment of another Soldier; 3) The applicant served in the Canal Zone from 27 June 1978-03 August 1979;4) The applicant was honorably discharged on 30 August 1979. c. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The VA’s Joint Legacy Viewer (JLV) was also examined. d. The applicant states he experienced harassment and racial discrimination during the investigation of the lost weapon. He reported being “overwhelmed with the nightmare of the torture and harassment by the CID agent.” A review of JLV provided evidence that the applicant reported problems with nightmares and other behavioral health symptoms related to his military service since 2008. The applicant has been treated for PTSD, insomnia, and depression. He is also receiving 100% service- connected disability for PTSD since 19 April 2018. e. Based on the available information, it is the opinion of the Agency BH Advisor there is sufficient evidence to support that the applicant has reported behavioral health symptoms related to his experiences in the military. Kurta Questions (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? N/A. The applicant had an honorable discharge, but he would like to have a NJP removed from his record. There is sufficient evidence that applicant has reported behavioral health symptoms as a result of multiple potentially traumatic experiences which occurred during his military service. The applicant also receives serviced connected disability for PTSD. (2) Did the condition exist or experience occur during military service? N/A (3) Does the condition experience actually excuse or mitigate the discharge? N/A 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. The applicant’s commander informed him on 19 May 1978, that he was considering whether he should be punished under Article 15 for knowing that another Soldier stole a pistol, the property of the U.S. Government, and in order to prevent the punishment of the other individual by not revealing under direct interrogation the true circumstances of the violation as told to him by the accused. The applicant consulted with counsel. He declined trial by a court-martial and indicated he will present matters in his own defense. He elected a closed hearing. On 25 May 1978, the commander found him guilty. His punishment was forfeiture of $100.00. The applicant elected not to appeal. The evidence does not show the applicant was denied any of his rights throughout the NJP process. Additionally, although there is evidence that the applicant has reported behavioral health symptoms as a result of multiple potentially traumatic experiences which occurred during his military service and that he also receives serviced connected disability for PTSD, this has no bearing on the filing of his NJP. However, the Board determined that after so many years, this Article 15 serves no purpose, and it should be removed from his record. The Board further noted that this does not change the finding of guilty or the punishment he received. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army be corrected by removing the Article 15, dated 25 May 1978 from his records. 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 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, USC, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation 635-200 (Personnel Separations Enlisted Personnel), Chapter 2, as then in effect, provided for separation of enlisted personnel upon expiration of terms of service. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management (AMHRR)) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. The AMHRR includes, but is not limited to the Official Military Personnel File (OMPF), finance related documents, and non-service documents. The AMHRR is the historical and authoritative sources for authentication of Veteran or service-related benefits. 5. Army Regulation 600-37 (Unfavorable Information) provides policies regarding unfavorable information considered for inclusion in the OMPF. It provides: * for placement of unfavorable information about Army members in individual OMPFs * ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files * ensures that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files * once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority * the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF * appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont.) AR20220006897 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1