APPLICANT REQUESTS:  In effect, the applicant requests that the 22 May 1979 nonjudicial punishment administered under Article 15, UCMJ, be expunged from his records, and that he receive standby advisory board consideration for promotion to pay grades E-5 through E-7.  

APPLICANT STATES:  That he was falsely administered nonjudicial punishment on 22 May 1979, which systematically and significantly slowed and halted his career advancement. The false Article 15 action was removed from his performance fiche and placed on his restricted fiche on 26 July 1995.  There was a reasonable chance that had the error not existed, he would have been selected earlier for promotion for pay grades E-5 through E-8.

When he received the wrongful nonjudicial punishment, the record of proceedings indicate that he was reduced to pay grade E-4, forfeited $200.00 per month for 2 months, with the aforementioned punishments to have been suspended for a period of 90 days.  He states that his DA Form 2-1 (Personnel Qualification Record) shows that he was reduced on 22 May 1979 (the date of the nonjudicial punishment action), without the 90 day suspension ever maturing.  He states that the date on a September 1980 leave and earning statement (LES) shows that he was reduced in (October 1980?). He made a search of documents to support the Article 15 action, but was told the records were only maintained for 6 years and 3 months.  He states that there are no records showing vacation of the suspension and requests all rank and moneys be reinstated.  

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant entered the Army in 1974 and has remained on continuous active duty since then.  He has served as a finance specialist, information systems operator, and program analyst.

An enlisted evaluation report signed by the applicant on 
11 August 1978 while at Fort Benjamin Harrison, Indiana, shows his pay grade as E-4.  His DA Form 2-1 shows that he was promoted to pay grade E-5 on 8 August 1978. 

The applicant received nonjudicial punishment under Article 15, UCMJ, on 22 May 1979 for failure to go at the time prescribed to his appointed place of duty.  He was reduced to pay grade E-4 and required to forfeit $200.00 per month for two months, both punishments suspended for a period of 90 days.  The applicant chose not to appeal the punishment.

An enlisted evaluation report signed by the applicant on 
13 September 1979 while stationed in Korea shows his pay grade as E-5.

A 25 July 1980 service school academic evaluation report from the Eighth Army NCO Academy shows his pay grade as E-5.

A LES for the period 1-30 September 1980 provided by the applicant shows his pay grade as E-4.

The applicant reenlisted in the Army on 22 January 1981.  His enlistment grade is shown as E-4.

An enlisted evaluation report signed by the applicant on 
3 May 1982 shows his pay grade as E-5, however, with a date of rank of 1 May 1981.

An enlisted evaluation report signed by the applicant on 
22 December 1983 shows his pay grade as E-5, again with a date of rank of 1 May 1981.  This same holds true for an evaluation report signed by the applicant on 
11 January 1985.

The applicant’s DA Form 2-1, prepared on 27 December 1983, shows that he was reduced to the rank of SP4 (pay grade E-4) on 22 May 1979.  The applicant reviewed and signed this record on 26 January 1993, attesting to its accuracy.   

On 7 July 1995 the applicant requested that the DA Suitability Evaluation Board (DASEB) transfer the record of his nonjudicial punishment from the performance portion of his official file to the restricted portion, stating that he was 25 years old at the time of the punishment, received the nonjudicial punishment for being 30 minutes late for charge of quarters duty, and that the purpose of the Article 15 had been served.  On 26 July 1995 the DASEB approved the applicant’s request.  That board stated that that transfer was not to be considered retroactive, and therefore, did not constitute grounds for referral to a special selection board for reconsideration of a previous nonselection.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant was reduced to pay grade E-4, date unknown.  The 22 May 1979 nonjudicial punishment action shows a reduction, suspended for a period of 90 days, however, his DA Form 2-1 shows that he was reduced to pay grade E-4 on that date.  By the same token, an evaluation report in September 1979 and in July 1980 show his pay grade as E-5.  Subsequent documents (LES of September 1980 and reenlistment document of January 1981) show his grade 
as E-4.  It is reasonable to assume that he was reduced to E-4 subsequent to his July 1980 evaluation report, and prior to the receipt of his September 1980 LES, and that his reduction was not as a result of the 22 May 1979 nonjudicial punishment.

2.  The Board agrees with the applicant that there are no documents in the available records to show any proof of vacation of the suspended nonjudicial punishment action.  It is, however, incomprehensible for the applicant to expect the Board to believe that he was unaware that he was not reduced as a result of the nonjudicial punishment action and unaware of the date and action which resulted in his reduction.

3.  The applicant did not demand trial by court-martial, but accepted the 22 May 1979 nonjudicial punishment, and chose not to appeal the punishment.  The applicant has provided no probative evidence nor a convincing argument to show that the nonjudicial punishment was falsely administered, wrongful, or erroneous.  The applicant himself stated to the DASEB that he had been late for charge of quarters duty, and in the request to that board did not question the validity of the nonjudicial punishment action.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director