RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 May 2007
	DOCKET NUMBER:  AR20060013100 


	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 be restored to specialist four (SP4) and that he be assigned a 10 point Veterans’ preference.

2.  The applicant states, in effect, that he was demoted from the rank of SP4 to private (PVT) because of false allegations made against him, and that he was forced to admit guilt to something that he did not do.  He claims that he was wrongfully accused of stealing packages even though another Soldier informed his unit commander that he had nothing to do with it.  He claims that his unit commander remarked that the other Soldier forwarded the packages while he received them.  He also states that he was under a great deal of stress because of the false allegations made against him.  He claims that he began to smoke heroin and this led to his drug problem, which can be confirmed in his medical records.  He further states that he was transferred to the 20th Infantry Regiment to serve out the rest of his tour.  He finally indicates that prior to this incident, he was on the fast track to making sergeant (SGT); however, was set up to have his rank taken away from him.

3.  The applicant provides a Department of Veterans Affairs (VA) Statement in Support of Claim (VA Form 21-0781), dated 24 August 2006, with accompanying document and his Separation Document (DD Form 214) in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error that occurred on 
22 May 1970, the date of his separation.  The application submitted in this case is dated 24 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 personnel records show he was inducted into the Army of the United States and entered active duty on 22 May 1970.  He completed basic combat training and advanced individual training at Fort Polk, Louisiana.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 70A (Clerk).  

4.  The applicant’s Enlisted Qualification Record (DA Form 20) shows, in Item 33 (Appointments and Reductions), that he was promoted to the SP4 on 16 February 1971, and that this is the highest rank he attained while serving on active duty.  It also confirms he was reduced to private first class (PFC) on 
6 June 1971 and to private/E-1 (PV1) on 5 October 1971.

5.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions.  

6.  On 5 June 1971, the applicant accepted NJP for failing to go to his appointed place of duty at the prescribed time.  His punishment for this offense was a reduction to private first class (PFC).  

7.  On 4 October 1971, while serving as a PFC in the 38th Base Post Office in the Republic of Vietnam (RVN), the applicant was notified by the Commander, 4th Transportation Command, a colonel, that he was considering whether the applicant should be punished under Article 15 of the UCMJ for the incident in question.  The stated offense for which the Article 15 was being considered was that the applicant wrongfully and unlawfully changed address labels with intent to steal certain mail matter to wit:  2 parcels of insured numbers addressed to a captain before such parcels were actually received by the person to whom they were directed with design to steal such matter from the addressee which said parcels were then in the custody of the 38th Base Post Office, an official agency for the transmission of United States Mail, before said parcels were actually delivered to whom they were directed.  

8.  On 5 October 1971, the applicant acknowledged receipt of the notification identified in the preceding paragraph and elected not to demand a trial by 
court-martial and not to submit matters in his own defense.  The unit commander then imposed NJP that consisted of the applicant's reduction to PV1 and a forfeiture of $50.00 per month for 2 months.  On 6 October 1971, the applicant elected not to appeal the punishment.  


9.  On 19 November 1971, the applicant accepted NJP for sleeping on duty while in a hostile fire pay area.  His punishment for this offense was a forfeiture of $20.00 and 14 days of extra duty and restriction.  

10.  On 2 December 1971, the applicant was honorably separated under the provisions of Army Regulation 635-205, by reason of early separation of overseas returnee, after completing a total of 1 year, 6 months, and 11 days of active military service.  The separation document (DD Form 214) he was issued shows he was separated in the rank of PV1.  The applicant authenticated the 
DD Form 214 with his signature in Item 34 (Signature of Person Being Transferred or Discharged).

11.  Chapter 26, Paragraph 13, Manual for Court-Martial (1969 Edition) prescribed the policies and procedures pertaining to the administration of
non-judicial punishment applicable during the applicant’s tenure.  This paragraph contained guidance on notification procedures and explanation of rights.  It stated, in pertinent part, that the imposing commander will ensure the Soldier was notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulated that Soldier would be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  Applicable Army regulations in effect at the time further provided the Soldier would be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, request to be accompanied by a spokesperson, an open hearing and to examine available evidence. 

12.  Paragraph 134, Manual for Court-Martial (1969 Edition) provided guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It stated, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was falsely accused of an offense he did not commit, which resulted in his reduction to PV1, has been carefully considered.  However, there is insufficient evidence to support his claim.  

2.  The evidence of record confirms that the applicant was properly notified of his commander’s intent to impose NJP for the offense in question on 4 October 1971, and on 5 October 1971, the applicant elected not to demand trial by 
court-martial, or to submit matters of mitigation in his own defense.  It further shows that on 6 October 1971, the applicant elected not to appeal the NJP. 

3.  By regulation, the basis for any set-aside action is a determination that, under all the circumstances of the case, the punishment resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  There is no such evidence of a fatal legal or factual error that would support setting aside the punishment imposed on the applicant by the Article 15 in question.  As a result, it would not be appropriate to grant the requested relief to reinstate the applicant's rank.

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.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 2 December 1971.  Thus, the time for him to file a request for correction of any error or injustice expired on 1 December 1974.  However, he failed to 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.

6.  The applicant is also advised that the granting of Veterans' preference in not within the purview of this Board.  The entitlement to Veterans' preference is determined by the Federal agency considering him for employment.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___KLW_  __PHM __  __KSJ __  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.




_____Kenneth L. Wright____
          CHAIRPERSON




INDEX

CASE ID
AR2006001310
SUFFIX

RECON
NO
DATE BOARDED
2007/05/10
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19718/12/02
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Early Separation of Overseas Returnee
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
129.0400
2.

3.

4.

5.

6.