IN THE CASE OF:	  

		BOARD DATE:	        31 March 2009

		DOCKET NUMBER:  AR20080019351 


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 correction of his records and/or DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows: 

	a.  removal of two nonjudicial punishments under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) from his records;

	b.  listing of military occupational specialty (MOS) 97B [sic] (95B) (Military Police) on his DD Form 214; 

	c.  correction of his records to show he completed his education; 

	d.  correction of his records to show his attorney records, police records, and intelligence records;  

	e.  correction of the terms of his military active duty; and 

	f.  correction of his records to show his entitlement to severance pay. 

2.  The applicant states that his punishment was too harsh and that because of his medical condition, he was not evaluated completely; he performed duties in MOS 95B before his discharge; he had language training and took courses while in the service; he "obtained a lawyer, but no record"; he "was drugged but no police or military intelligence reports"; and that he was "released from the Army but on active duty no payments." 

3.  The applicant provided a copy of his DD Form 214, dated 14 August 1981; copies of his DA Forms 2627 (Record of proceedings Under Article 15 of the UCMJ), dated 23 April 1981 and 24 June 1981; and a copy of a letter, dated 19 March 2003, from the National Personnel records Center (NPRC), in support of 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 requested correction of his records to show his entitlement to severance pay.  It is noted that the applicant had previously petitioned the Army Board for Correction of Military Records (ABCMR) for correction of his records to show he was discharged and/or retired by reason of physical disability and the issue of severance pay was accordingly considered and discussed.  However, the ABCMR rendered an unfavorable decision and denied his request on 6 April 1994.  He has since submitted several requests for reconsideration and was advised that the ABCMR will not consider any future requests for reconsideration pertaining to the issue of discharge and/or retirement by reason of physical disability.  Therefore, the issue of severance pay will not be discussed further in the Record of proceedings.

3.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) for a period of 6 years under the Delayed Entry Program (DEP) on 22 January 1980.  He was subsequently discharged from the DEP and enlisted in the Regular Army for a period of 3 years on 28 January 1980.  He completed basic combat and advanced individual training under the one unit station training (OSUT) program at Fort Bliss, TX.  

4.  On 8 April 1980, Headquarters, U.S. Army Air Defense Center and Fort Bliss, Fort Bliss, TX, published Orders 69-22, awarding the applicant MOS 16C (Hercules Fire Control Crewmember).  

5.  The applicant’s records also show he was subsequently assigned to Battery C, 3rd Battalion, 71st Air Defense Artillery, Germany, as a Hercules Fire Control Crewman, effective 22 May 1980 and attained the rank/grade of private first class (PFC)/E-3 on 28 January 1981.  

6.  On 23 April 1981, at a closed hearing, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty (guard mount) on or about 18 April 1981.  His punishment consisted of reduction to private (PV2)/E-2 (suspended for 60 days), a forfeiture of $100.00 pay, 14 days of extra duty, and 14 days of restriction.  He was advised of his right to appeal this punishment to the next higher authority; however, the applicant elected not to appeal.

7.  On 24 June 1981, at a closed hearing and after presenting matters in his defense and/or extenuation, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being absent without leave by not showing up for guard mount on or about 28 may 1981.  His punishment consisted of reduction to (PV2)/E-2 (suspended for 60 days), 7 days of extra duty, and 7 days of restriction.  He was also advised of his right to appeal this punishment to the next higher authority; however, the applicant elected not to appeal.

8.  On 27 July 1981, the applicant’s immediate commander advised the applicant that he intended to recommend his discharge from the Army under the provisions of paragraph 5-31 (Expeditious Discharge Program), of Army Regulation (AR) 635-200 (Personnel Separations), by reason of his completely unacceptable attitude, lack of self-discipline, and poor duty performance.  The immediate commander further notified the applicant that he was recommending his (the applicant’s) service be characterized as under honorable conditions.   

9.  On 27 July 1981, the applicant acknowledged notification of his proposed discharge from the Army under the provisions of paragraph 5-31 of AR 635-200 and voluntarily consented to this discharge.  

10.  On an unknown date in 1981, by endorsement, the applicant’s immediate commander recommended approval of the applicant’s discharge under the Expeditious Discharge program citing his poor attitude and lack of self discipline. 

11.  On 31 July 1981, the separation authority approved the applicant's discharge under the provisions of paragraph 5-31 (Expeditious Discharge Program) of AR 635-200 and directed that he receive a General Discharge Certificate.  On 14 August 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 1 year, 6 months, and 17 days of creditable active military service.  Item 11 (Military Specialty Number, Title and Years and Months in Specialty) of this form shows the entry "16C1O Hercules FC CR MBR 01 Years, 03 Months."

12.  There is no indication in the applicant's records that he was trained in and/or awarded MOS 95B.

13.  The applicant's records do not contain any documentation pertaining to language training, completion of any military courses, and/or completion of any civilian education.

14.  The applicant's records do not contain any documentation pertaining to attorney record, police record, or military intelligence records.

15.  AR 635-200, in effect at the time, set for the basic authority for the separation of enlisted personnel.  The pertinent paragraph in Chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

16.  AR 27-10 (Military Justice), prescribes the policies and procedures pertaining to the administration of military justice.  The regulation in effect at the time states, in pertinent part, that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a soldier’s record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings will be recorded on DA Form 2627.  The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a Soldier’s record.  

17.  AR 600-37 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 Official Military Personnel File (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 also provides provisions that allow the transfer of a DA Form 2627 from the performance portion to the restricted portion of the OMPF.  However, there are no provisions for removing a DA Form 2627 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.  

18.  AR 635-5 (Personnel Separations) establishes the standardized policy for preparing and distributing the DD Form 214.  The regulation directs, in pertinent part, that the purpose of the separation document is to provide the individual with documentary evidence of their military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of the regulation in effect at the time (15 August 1979 and Change 1, dated 1 August 1981) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that Item 11 shows the MOS codes, titles, years, and months.  Additionally, Item 14 (Military Education) shows in-service courses, title, number of weeks, year successfully completed during the period of service covered by the DD Form 214 (Training courses for combat skills will not be listed).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his two Articles 15 should be removed from his record, his DD Form 214 should be corrected to show MOS 95B, and requests several other administrative corrections to his record. 

2.  With respect to the applicant's nonjudicial punishments, the evidence of record shows that, on two separate occasions, the applicant violated certain provisions of the UCMJ.  Accordingly and in each instance, the applicant's immediate commander notified him that he was being considered for punishment under the provisions of Article 15.  In each instance, the applicant consulted with legal counsel, elected not to be tried by a court-martial, requested a closed hearing, and was afforded the opportunity to present matters in his defense.  
3.  The applicant's commanding officer, after hearing the applicant out, chose to administer nonjudicial punishment to him.  The applicant accepted his punishment and was subsequently afforded the opportunity to appeal, but elected not do so. 

4.  There is no evidence that his punishment was overly harsh.  Additionally, there is no evidence and the applicant has provided no evidence, that the Article 15s were in error or unjust.  The subject Article 15s are appropriately filed in the applicant's records.  The applicant's violation of the UCMJ and his subsequent punishments are an isolated incident; he has clearly demonstrated a pattern of misconduct.  

5.  With respect to the applicant's MOS, the evidence of record shows that the applicant was trained in and held MOS 16C.  There is no evidence in the applicant's records and the applicant did not provide any substantiating evidence that he was trained in, held, was awarded, or performed duties in MOS 95B. 

6.  With respect to his military education, there is no evidence in the applicant's records and the applicant did not provide any evidence that shows he completed language training and/or any military courses during his military service.

7.  With respect to his civilian education, there is no evidence in the applicant's records and the applicant did not provide any evidence that shows he completed any college courses, was awarded any degrees, or any other civilian education.

8.  With respect to the applicant's attorney records, police records, and intelligence records, there is no evidence in the applicant's records and the applicant did not provide any evidence that shows he was drugged and/or that he was treated for being drugged.  Additionally, his records are void of any police, attorney, or intelligence records pertaining to an incident of being drugged.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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.



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      _______ _   _______   ___
               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)                                         AR20080019351



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ABCMR Record of Proceedings (cont)                                         AR20080019351



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