MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 12 September 2002
         DOCKET NUMBER: AR2002074692

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Donald P. Hupman, Jr.		Member
Mr. William D. Powers		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that an Article 15 and all references to the charge it was based on be expunged from his records, and that his rank be restored.

APPLICANT STATES: In effect, that he was promoted to specialist four (SP4) on 23 April 1971, and was ordered to Germany. He claims that from his first encounter with his unit commander in Germany, a captain (CPT), there was a mutual dislike. He indicates that although he adhered to all military courtesies with him, the CPT still rode him in a derisive fashion that exceeded the bounds of conduct expected of an officer. He also states that he respectfully complained to the first sergeant, but was ignored. He claims that because he was disgruntled by the situation, he volunteered for assignment to the Republic of Vietnam (RVN) on three separate occasions. However, he was told by the first sergeant that he was wasting his time because the paperwork would not be put in. Finally, a moratorium on assignments to the RVN was announced, and this ended his attempts at reassignment. He further claims that he received the Army Good Conduct Medal after a year at this assignment in Germany, and that his unit commander was angry when he found out about the award. The charge that resulted in his receiving nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) was based on an incident that took place upon his return to his barracks after performing 10 hours of duty in the communications center. The CPT and a military policeman (MP) were present in the barracks and marched to his clothing locker, which he could not secure because the latch was broken. The CPT opened the door and pointed to a small pipe on the shelf, and asked the applicant what it was. The applicant claims that he replied that he did not know because it was the first time he saw it. The CPT looked at the MP and stated that he was charging the applicant with the possession of hashish, and that the MP was a witness to the applicant’s guilt. He began to protest, but was ordered to shut up. He claims that he wanted to fight this trumped up charge, but because of an early out edict, he was in line to return to the United States for discharge. He claims that the CPT told him, in front of no witnesses, that if he persisted in his efforts to fight the charges, he would hold up his orders until hell froze over. In spite of this threat, he did submit an appeal to the brigade commander. The appeal was denied and he was reduced in rank and forfeited pay in accordance with the NJP imposed by his unit commander. Based on the injustice of this incident the applicant contends that it would be appropriate to provide him with the following remedies: withdrawal of the biased charge against him; restoration to SP4; reimbursement of lost pay as a result of the reduction; restoration of his top secret clearance, which was taken from him by his unit commander; issue of a new separation document (DD Form 214), reflecting his restored rank; and total purging of any reference to this charge that are filed in his personnel files and Military Personnel Records Jacket (MPRJ).

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

On 5 October 1970, he enlisted in the Regular Army for 2 years. He successfully completed basic training and advanced individual training (AIT) at Fort Knox, Kentucky. Upon completion of AIT he was awarded military occupational specialty (MOS) 05C (Radio Teletype Operator) and was assigned to Germany.

The applicant’s Enlisted Qualification Record (DA Form 20) confirms that he was promoted to SP4 on 23 April 1971, and that this is the highest rank he held while serving on active duty. The applicant provides a copy of General Orders Number 378, dated 13 March 1972, issued by Headquarters, 1^st Armored Division, which awarded him the Army Good Conduct Medal for the period 5 October 1970 through on or about 5 May 1972, which was his scheduled separation date.

There are no documents or orders on file in the applicant’s Official Military Personnel File (OMPF) that make reference to the offense for which the applicant claims he was unjustly charged. Further, the record of proceedings of the NJP imposed is not on file in his MPRJ. However, Special Orders Number 98, dated 7 April 1972, published by Headquarters, 1^st Armored Division, Germany, and provided to the Board by the applicant, confirms that he was reduced from
SP4 to private first class (PFC), on 20 March 1972.

The applicant also provided a copy of the statement he submitted to the brigade commander appealing the NJP imposed upon him. In his appeal statement, the applicant never alleges that the pipe in question was not his, nor does he deny that he possessed hashish. He only argues that the punishment imposed was too harsh for the minor offense committed.

On 29 April 1972, the applicant was honorably released from active duty under the provisions of an announced Department of the Army early release program, by reason of Secretarial Authority. The DD Form 214 issued to the applicant on the date of his separation confirms that he held the rank of PFC on his separation date. This document was signed by the applicant in Item 32 (Signature of Person Being Transferred or Discharged), which confirms that he verified that the information contained therein was correct at the time.

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

1. The Board notes the applicant’s contention that he was unjustly charged with an offense based on bias on the part of his unit commander; and his request that his rank should be restored with entitlement to back pay, all adverse actions that resulted from this charge should be reversed, including the loss of his security clearance, and all references to the charge and punishment should be expunged from his OMPF. However, it finds insufficient evidence to support these claims.

2. The facts and circumstances surrounding the events that led to the applicant’s acceptance of NJP and the resulting sentence, which included his reduction, are not on file in the record. However, the applicant provided a copy of orders that confirm he was reduced to PFC on 20 March 1972. In addition, the DD Form 214 on file that was authenticated by the applicant on the date of his separation also verifies that he held the rank of PFC on the date he was released from active duty. Therefore, the Board presumes government regularity in the reduction process.

3. Notwithstanding the applicant’s statement, lacking evidence to the contrary, the Board is satisfied that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the NJP process, as is evidenced by his admission that he was allowed to submit an appeal to the NJP imposed. Therefore, the Board finds insufficient evidence to show any error or injustice related to NJP process or to any related actions or to support of the relief requested by the applicant.

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 this 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

__JNS__ __DPH___ __WDP__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002074692
SUFFIX
RECON
DATE BOARDED	2002/09/12
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1972/04/29
DISCHARGE AUTHORITY	AR 635-200 C5
DISCHARGE REASON	Secretarial Authority
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 286	126.0400
2. 1021	100.0000
3.
4.
5.
6.