IN THE CASE OF:	  

		BOARD DATE: 	        18 June 2009

		DOCKET NUMBER:  AR20090000722 


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, an amendment or change to the charge of sleeping on duty in his court-martial orders and his DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)).

2.  The applicant states, in effect, that due to incorrect information, these reports should be changed.  He also states, in effect, that he was not sleeping on duty; there was no Inspector General inspection at that time and this was a regular work day for the company.  He further states that the reason he did not fight the Article 15 is because he was not able to understand the charges.  He was diagnosed by his doctor as having sleep apnea and who mentioned that this was probably the reason he had trouble while on active duty.  He also states that he suffered from attention deficit disorder and dyslexia in high school.

3.  In support of his application, the applicant provides copies of his summary court-martial, page 1 of his 1965 and 1966 DA Forms 2627-1, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), his Veterans Service Center claimant report, and his QTC [Quality - Timeliness - Customer Service] Medical Services compensation and pension examination notification.

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 military records show he enlisted in the Regular Army in pay grade E-1 on 30 August 1963 for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 36A, Wireman.  He was advanced to pay grade E-4 on 30 September 1965.

3.  On 8 November 1965, the applicant accepted punishment under Article 15, UCMJ, for dereliction in the performance of his duties in that he was found sleeping when he was supposed to be preparing for an inspection by order of his company commander on 8 November 1965.  His punishment included a reduction to pay grade E-3 (suspended for 30 days) and 14 days of extra training and restriction to the company area.  He did not appeal the punishment.

4.  On 18 January 1966, a DD Form 458 (Charge Sheet) was prepared by the Commander, Headquarters Company, 1st Battalion, 505th Infantry, 3rd Brigade, 82nd Airborne Division, Fort Bragg, North Carolina.   The applicant was charged with three specifications of willfully disobeying lawful orders issued by the commanding officer on 14, 17, and 18 January 1966 and one specification of sleeping on duty on 17 January 1966 when he was the clerk on duty in the battalion message center.  He had elected not to accept punishment under Article 15.

5.  On 14 February 1966, the applicant was convicted by summary court-martial of two specifications of willfully disobeying lawful orders issued by the commanding officer on 17 and 18 January 1966 and one specification of sleeping on duty on 17 January 1966.  The applicant was sentenced to a reduction to pay grade E-3 and restriction to the company for 60 days.  The sentence was adjudged on 14 February 1966 and approved on 8 March 1966.  The sentence was reassessed, found appropriate, and approved on 8 April 1966.

6.  The applicant was reduced to pay grade E-3 on 14 February 1966.  He was again advanced to pay grade E-4 on 25 May 1966.

7.  On 18 August 1966, the applicant accepted punishment under Article 15, UCMJ, for failing to go to his appointed place of duty on 7 August 1966.  His punishment included a reduction to pay grade E-3 (suspended for 30 days), a forfeiture of pay for 7 days, and 14 days of restriction to the company area and extra duty.  He did not appeal the punishment.

8.  The applicant was reduced to pay grade E-3 on 18 August 1966.

9.  The applicant was discharged on 29 August 1966 in pay grade E-3 at the expiration of his term of service.  His service was characterized as under honorable conditions.  He was credited with 3 years net active service.

10.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to change a court-martial conviction, rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

11.  Army Regulation 27-10 (Military Justice), specifies that nonjudicial punishment is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  Nonjudicial punishment may be set aside, removed, or changed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  An application for removal of a DA Form 2627 or DA Form 2627-1 from a Soldier's official military personnel file (OMPF) based on an error or injustice will be made to the ABCMR.  It further states that there must be compelling evidence to support the removal or change of a properly completed, facially valid DA Form 2627 or DA Form 2627-1 from a Soldier’s record by the ABCMR.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant accepted punishment under Article 15, UCMJ, on 8 November 1965, for being found sleeping on duty when he was supposed to be preparing for an inspection by order of his company commander.  His punishment included a reduction to pay grade E-3 and extra training and restriction.  He did not appeal the punishment.

2.  The evidence of record also shows that on 14 February 1966 the applicant was convicted by a summary court-martial and was found guilty of two specifications of willfully disobeying lawful orders and one specification of sleeping on duty when he was the clerk on duty in the battalion message center. 
He elected to refuse punishment under Article 15 and was sentenced to reduction to pay grade E-3 and restriction to the company for 60 days.  The sentence was reassessed, determined appropriate, and approved on 8 April 1966.

3.  The applicant's contentions that the charges of sleeping on duty should be changed in his court-martial orders and Article 15 have been noted.  However, the evidence shows he did not appeal the 8 November 1965 Article 15 punishment for sleeping on duty.  On 17 January 1966, he was again found sleeping on duty.  He was convicted by a summary court-martial after refusing nonjudicial punishment for that charge.

4.  The applicant has not provided convincing evidence that the court-martial orders do not reflect the true state of affairs existing at the time.  He also has not provided convincing evidence that the DA Form 2627-1 is untrue or unjust in whole or in part to support his request for changes to these documents.  Absent any evidence meeting regulatory standards, there is an insufficient evidentiary basis to support changing the documents in question.

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.

6.  In view of the foregoing, there is no basis for granting the applicant’s requests.

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.


      _______ _   X_______   ___
               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)                                         AR20090005122



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ABCMR Record of Proceedings (cont)                                         AR20090000722



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