IN THE CASE OF:	  .

		BOARD DATE:	       9 JUNE 2009

		DOCKET NUMBER:  AR20090000145 


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, in effect, that a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, he left his duty station due to unsafe conditions due to the lack of safety equipment and the close location of a chemical storage area.  He claims the punishment he received was excessive and unfair. 

3.  The applicant provides a self-authored statement, DA Form 2627-1, and DD Form 214 (Report of Separation from Active Duty) in support of his request. 

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’s record shows that after having prior active and inactive service, the applicant enlisted in the Regular Army and entered active duty on the period of enlistment under review on 8 November 1972.  He service in military occupational specialty was 76V (Equipment Storage Specialist) and specialist four (SP4) is the highest rank he attained while serving on active duty.

3.  On 13 December 1973, while serving as a SP4 with Company A, Supply Battalion, Fort Buckner, Okinawa, the applicant was notified that his commander was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order.

4.  On 18 December 1973, the applicant completed Section II (Acknowledgment of Notification) of the DA Form 2627-1 and elected not to demand a trial by 
court-martial and not to submit matters in extenuation, mitigation, or defense.  

5.  On 19 December 1973, the applicant’s commander imposed the following punishment on the applicant:  forfeiture of $110.00, 14 days extra duty, and reduction to private first class (PFC), which was suspended for 60 days.  The applicant elected not to appeal the punishment and signed the DA Form 2627-1 confirming this election on 19 December 1973.

6.  On 10 January 1975, the applicant accepted non-judicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty.  His punishment for this offense was a forfeiture of $50.00 for one month and 7 days of extra duty.

7.   On 9 July 1975, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being disrespectful in language toward a superior noncommissioned officer (NCO).  His punishment for this offense was a forfeiture of $75.00, reduction to PFC, and 7 days of extra duty.  

8.  On 7 November 1975, the applicant was honorably released from active duty (REFRAD).  The DD Form 214 he was issued at the time confirms he held the rank of PFC and completed a total of 5 years, 10 months, and 27 days of active military service.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-18 contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the Soldier will be informed of the right to demand trial by court-martial.  


10.  Paragraph 3-28 of the military justice regulation 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 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 applicant’s request to remove the DA Form 2627-1 in question from his military record was carefully considered.  However, the evidence of record confirms the disposition and filing of the record of NJP he accepted on 18 December 1973, while he was serving in the rank of SP4, was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the NJP process.  

2.  The evidence of record confirms that after being properly notified that his commander was considering whether he should be punished under Article 15, the applicant elected not to demand a trial by court-martial and not to submit  matters in defense, mitigation, and/or extenuation.  The applicant also elected not to appeal the punishment and confirmed this decision on 19 December 1973.

3.  The evidence of record does not appear to show there was a fatal legal or factual error made in the Article 15 process that would support setting aside the NJP action imposed.  Therefore, the “Clear Injustice” regulatory standard necessary to set-aside an Article 15 has not been satisfied in this case, and it would not be appropriate to remove the DA Form 2627-1 from his record at this late date. 

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.


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.




      _______ _   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)                                         AR20090000145



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ABCMR Record of Proceedings (cont)                                         AR20090000145



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