RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011679 


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



	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 21 October 1965, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the Article 15 was unjust because he was ordered to attend a GI party on his Sabbath (Friday evening) and his objection to the order was not entered on his Article 15.  He also states that his unit commander lied to him more than once.  He now wants justice by having the Article 15 removed from his file. 

3.  The applicant provides a copy of his Article 15.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 July 1967, the date of his release from active duty.  The application submitted in this case is dated 4 August 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The evidence of record shows the applicant served in the Regular Army from 7 July 1965 through 3 July 1967.  He was honorably discharged at his expiration term of service, completing 1 year, 11 months, and 27 days of active duty.  He attained the grade of specialist/E-4 and received the Army Good Conduct Medal and the National Defense Service Medal.  His DA Form 20 (Enlisted Qualification Record) shows that his conduct and efficiency were both rated as "excellent" throughout his term of service.

4.  On 21 October 1965, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for disobeying a lawful order to return to the barracks for clean-up detail after getting a haircut on 19 October 1965.  His punishment consisted of a forfeiture of $42.00 and 14 days of restriction and of extra duty.  In Section II (Acknowledgement of Notification) of the Article 15, the applicant authenticated the following statement with his signature:  "I acknowledge receipt of the foregoing communication.  Trial by court-martial is not demanded.  Matters in extenuation, mitigation, or defense are not submitted herewith."

5.  The date of the applicant's offense, the 19th of October 1965 was on a Tuesday.  He was read the Article 15 on 21 October 1965, a Thursday.  Punishment was imposed on 22 October 1965, a Friday; the applicant acknowledged his punishment on 23 October 1965, a Saturday.

6.  On 23 October 1965, the applicant executed Section IV (Acknowledgement of Imposition of Punishment) of the Article 15 and authenticated the following statement with his signature:  "I received the foregoing communication on
23 October 1965.  I do not appeal from this punishment."

7.  Army Regulation 27-10 (Military Justice), then in effect, prescribed the policies and procedures pertaining to the administration of military justice.  Paragraph
3-15b stated, in pertinent part, that for Soldiers serving on active duty and having completed 3 years or less of active Federal military service at the time of offense, the original record of NJP would be sent to the appropriate custodian for permanent filing in the efficiency portion of the OMPF.  

8.  Army Regulation 600-8-104 (Military Personnel Information Management /Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  It establishes principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records.  It states, in pertinent part, that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from the OMPF unless directed by competent authority.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was unjustly given an Article 15 for an incident which occurred on his Sabbath (Friday evening) and that it should be removed from his OMPF.

2.  The applicant was given an Article 15 for an offense which occurred on 
19 October 1965, a Tuesday, not his Sabbath as he contends.  He did not demand trial by court-martial and he did not submit any matters in extenuation, mitigation, or defense.  He did not appeal the Article 15.
3.  There is no evidence to support the applicant's contention that the Article 15 was unjustly imposed or that his unit commander lied to him many times.  He completed his period of active duty, was honorably discharged, and based on his unit commander's evaluation of his conduct and efficiency as "excellent," was awarded the Army Good Conduct Medal.  The Article 15, which occurred early in the applicant's period of service, obviously had no negative impact on his successful Army service.

4.  The Article 15 was properly filed in accordance with Army regulations at the time.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, there is no basis to grant the applicant's request to remove the Article 15 from his OMPF.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 July 1967; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 July 1970.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __lwr___  __reb___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.



						Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060011679
SUFFIX

RECON

DATE BOARDED
20070315
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
126.0500
2.

3.

4.

5.

6.