RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 June 2008
	DOCKET NUMBER:  AR20080001844 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 that his rank and grade of Specialist Five (SP5)/E-5 be restored.  

2.  The applicant states, in effect, that he was reduced from the rank of SP5 and eventually to Private (PVT)/E-1.  He feels that the punishments should be set aside and is willing to forgo pay and allowances from the date of punishment until his discharge in February 1968.  He feels the punishments on two of the Article 15s were egregiously harsh.  He further states that in December 1966 he requested that his commander review his appeal that was attached to the Article 15, but the commander never responded.  This request is a resubmission of the original appeal to his Article 15 and should be regarded as dating from December 1966.

3.  The applicant provides no additional documentation in support of this case.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 6 July 1962 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 534.10 (Chemical Staff Specialist), which was later converted to MOS 54E.  The applicant was honorably discharged on
18 February 1965 and immediately reenlisted on 19 February 1965.  

3.  On 5 May 1964, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for previous indulgence in intoxicating liquor and being incapacitated for the proper performance of his duties.


4.  On 12 May 1964, the applicant accepted NJP under Article 15, UCMJ for being disorderly in camp.

5.  On 28 September 1966, the applicant was promoted to the rank of SP5/E5.

6.  On 22 December 1966, the applicant accepted NJP under Article 15, UCMJ for being absent without leave for the period 16 December 1966 through 
19 December 1966.    

7.  The applicant’s records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 22 December 1966, which shows that he was directed to acknowledge receipt of the Article 15 punishment and provide any matter in mitigation, extenuation or defense within 24 hours.  Section II (Acknowledgement of Notification) shows he elected to submit matters in mitigation, extenuation or defense in Section V of the form.  In Section V the applicant stated, in effect, that he admitted being AWOL for reasons of a personal nature and that he did not intend to remain AWOL longer than the personal reasons absolutely necessitated.  This form shows in Section IV (Acknowledgement of Imposition of Punishment) that the applicant acknowledged in his own hand that he did not appeal his punishment.  The imposing commander found him guilty, and imposed the punishment of a reduction to Specialist Four (SP4)/E-4 (reduction suspended until 28 April 1967) and forfeiture of $135.00 pay per month for one month.

8.  The applicant's suspended reduction in rank was apparently vacated.  Evidence of record shows that he was reduced to the rank of SP4 on 19 January 1967. 

9.  On 20 January 1967, the applicant accepted NJP under Article 15, UCMJ for being AWOL on 18 January 1967 and making a false statement to his First Sergeant and Commanding Officer.  His punishment consisted of reduction to PVT/E-1, forfeiture of $60.00 pay per month for two months, and restriction for 60 days (restriction suspended until 28 April 1967).

10.  On 1 June 1967, the applicant accepted NJP under Article 15, UCMJ for not being at his appointed place of duty.

11.  On 5 August 1967, the applicant accepted NJP under Article 15, UCMJ for being disorderly in a public place.



12.  On 22 November 1967, the applicant's bar to reenlistment was approved by the appropriate authority.

13.  The applicant was honorably released from active duty on 2 February 1968, by reason of early separation from overseas.  He had completed a total of
5 years, 6 months, 24 days of creditable active service with 3 days of lost time due to AWOL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his reductions in grades from SP5 to PVT as a result of Article 15s were egregiously harsh and that his commander did not respond to his Article 15 appeal in December 1966.  

2.  Records show that the applicant was provided the opportunity to appeal the Article 15 punishment and to provide evidence which would mitigate or defend his actions which resulted in the issuance of the Article 15 for being AWOL in December 1966.  The Article 15, which is authenticated in the applicant's own hand, clearly shows that he elected not to appeal the punishment, although he did provide information in mitigation, extenuation or defense of his actions.  

3.  Therefore, the applicant's contention that his commander did not respond to his appeal for being AWOL which resulted in the issuance of the December 1966 Article 15 is without factual basis.

4.  In the course of him receiving four additional Article 15s he was eventually reduced to the rank of PVT.  There is no evidence and the applicant has not provided evidence to show his punishment was unjust or harsh.  Therefore, there is insufficient evidence to support this argument.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xxx   _  ___xxx     __xxx___    DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

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.



      ___ xxxxxxxxx __
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080001844


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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