RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2007
	DOCKET NUMBER:  AR20060012512 


	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, in effect, that his rank and pay grade shown on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that was issued at the time of his release from active duty on 
28 March 1966 be changed from private first class/pay grade E-3 to sergeant/pay grade E-5.  

2.  The applicant essentially states that his rank of sergeant was reinstated after his release from active duty on 28 March 1966 when it was determined that the majority of his sentence by a court-martial, which included a reduction in rank from sergeant/pay grade E-5 to private/pay grade E-1, was illegal.

3.  The applicant provides two DD Forms 214, a court-martial order which sentenced him to confinement at hard labor for 6 months, a forfeiture of $57.00 per month for 6 months, and reduction to the grade of private/pay grade E-1, and a court-martial order which voided and set aside so much of the above sentence that exceeded a forfeiture of $57.00 per month for 3 months in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 28 March 1966, the date of his release from active duty.  The application submitted in this case is dated 21 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 applicant’s military records show that he was promoted to the rank and pay grade of sergeant/pay grade E-5 on 27 November 1963.

4.  Headquarters, 2nd Brigade, 11th Air Assault Division, Fort Benning, Georgia Special Court-Martial Order Number 30, dated 18 March 1965, convicted the applicant of failing to obey a lawful order (twice).  At the time of his court-martial conviction, he was sentenced to confinement at hard labor for 6 months, a forfeiture of $57.00 per month for 6 months, and reduction from sergeant/pay grade E-5 to private/pay grade E-1.

5.  Headquarters, 2nd Brigade, 11th Air Assault Division, Fort Benning, Georgia Special Court-Martial Order Number 36, dated 12 April 1965, suspended the unexecuted portion of the applicant’s sentence to confinement at hard labor for 
6 months for a period of 6 months, with provisions for automatic remission unless sooner vacated.

6.  A document, dated 22 September 1966, from Military Justice Division of the Office of The Judge Advocate General to the Army Board for Correction of Military Records, stated that it was the opinion of the Military Justice Division that the applicant’s special court-martial was legally sufficient with regard to the findings, but that the sentence was incorrect.  This document also stated that the order which the applicant was convicted of violating was a lawful order within the guidelines provided by the United States Court of Military Appeals in U.S. v. Martin, 1 USCMA 674, 5 CMR 102 (1952) and U.S. v. Giordano, 15 USCMA 163, 35 CMR 135 (1964).  However, it also stated that the maximum sentence allowable for violation of the order was the maximum allowable for offense of usury [the practice of lending money and charging the borrower interest, especially at an exorbitant or illegally high rate], which was forfeiture of two-thirds of his pay per month for 3 months per Footnote 5, Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, United States, 1951, at page 221.  That office requested that The Adjutant General publish a Department of the Army special court-martial order reflecting the correct sentence for the offenses alleged and restoring all rights and privileges to the applicant.

7.  Headquarters, Department of the Army, Washington, D.C. Special Court-Martial Order Number 21, dated 26 September 1966, voided and set aside so much of the applicant’s sentence that exceeded a forfeiture of $57.00 per month for 3 months, and stated that all rights, privileges, and property of which the applicant was deprived by virtue of that portion of the sentence so set aside would be restored.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank and pay grade shown on his DD Form 214 that was issued at the time of his release from active duty on 28 March 1966 should be changed from private first class/pay grade E-3 to sergeant/pay grade E-5.  

2.  Evidence of record clearly shows that so much of the applicant’s sentence by court-martial that exceeded a forfeiture of $57.00 per month for 3 months was set aside, and that all rights, privileges, and property of which the applicant was deprived by virtue of that portion of the sentence so set aside was restored.  Therefore, he is entitled to correction of his military records to show that his rank and pay grade at the time of his release from active duty was sergeant/pay grade E-5, and that his date of rank was 27 November 1963.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 28 March 1966, therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
27 March 1969.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file based on the relief being granted in this case.

BOARD VOTE:

__JV____  ___PM__  ___GP___  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 and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that his rank and pay grade at the time of his release from active duty was sergeant/pay grade E-5, and that his date of rank was 27 November 1963.





______ Vick James__________
          CHAIRPERSON




INDEX

CASE ID
AR20060012512
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070424
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
129.0000.0000
2.

3.

4.

5.

6.