RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  23 August 2007
	DOCKET NUMBER:  AR20070005053 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Lester Echols

Chairperson

Mr. Richard T. Dunbar

Member

Mr. John T. Meixell

Member

	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 the removal of two DA Form 2627, Record of Proceedings, Under Article 15, Uniform Code of Military Justice (UCMJ), dated 7 December 1977 and 6 June 1980 and the removal of "Absent Without Leave" (AWOL) entry from her Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that:

	a.  She encountered a flight delay upon returning to Fort Sill, Oklahoma, and called her unit to inform someone of this delay.  She further contends that there was no other way for an earlier arrival and that her chain of command considered her AWOL and punished her under Article 15 on 7 December 1977.  

	b.  She accepted the charges under Article 15 on 6 June 1980 for fear of physical harm by her spouse.  She further states that her commander knew she was innocent and that she was afraid to accuse her spouse of the charges for fear of physical harm.  

3.  The applicant provides a copy of her DA Form 2-1 (Personnel Qualification Record), DA Form 2627 dated 6 June 1980, DD Form 256A (Certificate of Discharge from the Armed Forces of the United States of America), Letter of Commendation, Adoption Decree, and College Transcripts in support of her application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 18 September 1980, the date of her discharge.  The application submitted in this case is dated 12 January 2007.

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 records show that she enlisted in the Regular Army on 12 September 1974.  Records further show that the applicant completed basic combat and advanced individual training and awarded military occupational specialty (MOS) 71B (Clerk Typist).  The applicant’s record shows that the highest rank she attained while serving on active duty was specialist/E-4 and was honorably discharged on 21 September 1974 for the purpose of immediate reenlistment.

4.  Item 35 (Current and Previous Assignments) of the applicant's DA Form 2-1 shows an entry of AWOL on 3 December 1977.  

5.  On 6 December 1977, while she was serving as a specialist/E-4 at Fort Sill, Oklahoma, the applicant was notified that her unit commander was considering whether she should be punished under Article 15 of the UCMJ for being absent without leave from on or about 3 December 1977 to on or about 5 December 1977.  Subsequent to this notification, the applicant elected not to demand a trial by court-martial, and instead chose for the matter to be handled by her unit commander at a closed hearing. 

6.  On 7 December 1977, the applicant’s unit commander imposed a punishment of forfeiture of $50.00 pay.  The applicant elected not to appeal the punishment.

7.  On 29 May 1980, while she was serving as a specialist/E-4 with the 8th Support Group, Italy, the applicant was notified that her unit commander was considering whether she should be punished under Article 15 of the UCMJ for wrongfully selling tax free, rationed gasoline coupons to an unknown host nation local national.  Subsequent to this notification, the applicant elected not to demand a trial by court-martial, and instead chose for the matter to be handled by her unit commander at a closed hearing. 

8.  On 6 June 1980, the applicant’s unit commander imposed the following punishment on the applicant:  reduction to the grade of private first class (PFC)/pay grade E-3 (suspended to 6 September 1980), detention of 7 days pay for one month ($138.00), and 14 days extra duty.  The applicant elected not to appeal the punishment.  

9.  On 24 June 1980, the applicant’s unit commander ordered the suspension of the punishment of reduction to private first class/pay grade E-3, imposed on 6 June 1980 and suspended, and vacated the unexecuted portion of the punishment duly executed. 

10.  The applicant's DD Form 214 shows that she was honorably discharged on 18 September 1980 after completing 6 years and 5 days of creditable active duty service.
11.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Chapter 7 contains guidance on appeals for removal of unfavorable information from the OMPF.  It states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its alteration or removal from the OMPF.  It further stipulates that appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

12.  Paragraph 3-18 of Army Regulation 27-10 (Military Justice) contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates that the Soldier will 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.  It further states the Soldier will 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. 

13.  Paragraph 3-28 of Army Regulation 27-10 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, 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. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant’s Article 15 processing was accomplished in accordance with the governing law and regulation in effect at the time, and that her rights were fully protected throughout the process.  The applicant was notified of the commander’s intent to handle the offense in question under the provisions of Article 15 and she elected not to demand a trial by court-martial.  Further, subsequent to the action, the applicant elected not to appeal the punishment.  Therefore, absent any evidence of a clear injustice, it would not be appropriate to remove the Article 15 from her OMPF.

2.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 18 September 1980; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 17 September 1983.  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

__le____  __rtd___  __jtm___  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.




							Lester Echols
______________________
          CHAIRPERSON


INDEX

CASE ID
AR20070005053
SUFFIX

RECON

DATE BOARDED
20070823
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.

2.
126.0400
3.

4.

5.

6.