IN THE CASE OF:	  

		BOARD DATE:	        14 AUGUST 2008

		DOCKET NUMBER:  AR20080010938 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the restoration of his rank to specialist four and the removal of a record of nonjudicial punishment (NJP) dated 18 June 1974 from his records.  

2.  The applicant states, in effect, that he was falsely accused of having drug paraphernalia in his room that was discovered in a surprise inspection and was told that if he did not sign a statement to the effect that it belonged to him that he would receive a dishonorable discharge.  He goes on to state that he was only weeks from the expiration of his term of service (ETS) and being just 20 years of age and not knowing what to do, he signed the statement.  He further states that it has bothered him ever since and he now desires to have his rank restored and the record of NJP removed from his records. 

3.  The applicant provides a one-page statement regarding his application, a copy of his DD Form 214, and an authorization to allow his congressional representative to assist him with his application.  

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 was born on 10 August 1952 and was inducted in St. Louis, Missouri on 30 June 1972.  He completed his basic training at Fort Leonard Wood, Missouri and was transferred to Fort Hancock, New Jersey, for training as a Hercules Fire Control Crewman.  He was advanced to the pay grade of E-3 on 2 July 1973.
   
3.  On 3 August 1973, the applicant’s commander issued the applicant a written letter of reprimand for failure to report for guard mount on 29 July 1973.  

4.  On 10 September 1973, NJP was imposed against the applicant for sleeping on guard duty.  His punishment consisted of a reduction to the pay grade of E-2 (suspended for 120 days), a forfeiture of pay, extra duty and restriction.  The applicant did not appeal the punishment. 

5.  On 18 March 1974, NJP was imposed against the applicant for failure to go to his place of duty.  His punishment consisted of a forfeiture of pay, extra duty and restriction (all suspended for 14 days). 

6.  The applicant was advanced to the pay grade of E-4 on 26 April 1974 and on 18 June 1974, NJP was imposed against the applicant for the wrongful possession of one ounce or less of marijuana.  The applicant did not demand trial by court-martial.  His punishment consisted of a reduction to the pay grade of E-2 and a forfeiture of pay.  He did not appeal the punishment.

7.  On 20 June 1974, the applicant’s commander initiated action to bar the applicant from reenlistment.  He cited as the basis for his recommendation the applicant’s disciplinary record and his failure to respond to numerous counseling sessions regarding his habitual misconduct.  The applicant elected not to make a statement in his own behalf and the appropriate authority approved the bar to reenlistment.

8.  On 28 June 1974, he was honorably released from active duty in the pay grade of E-2 due to the ETS.  He had served 1 year, 11 months and 29 days of total active service.   

9.  Army Regulation 27-10, Military Justice, provides policy and procedures pertaining to the administration of military justice within the Army.  It provides, in pertinent part, that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  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 which clearly and affirmatively injured the substantial rights of the Soldier.  An example of “clear injustice” would be the discovery of new evidence 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.  Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.    

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted; however, they do not coincide with the available evidence of his official records. 

2.  It appears that the nonjudicial punishment was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  The punishment was not disproportionate to the offense and there is no evidence of any violations of the applicant’s rights. 
 
3.  Accordingly, it would be inappropriate to second-guess the commanders on the ground who had current information at the time and all of the circumstances in this case, by setting aside the punishment based on just the applicant’s version of the events some 34 years later. 
  
4.  Therefore, in the absence of evidence to show that the reciord of NJP was improperly imposed and filed in his official records, there appears to be no basis to set aside the punishment imposed by the NJP or to remove it from his records. 

5.  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.



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.




      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080010938





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ABCMR Record of Proceedings (cont)                                         AR20080010938



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