DOCKET NUMBER:  AR20090003523 


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 removal of an Article 15 from his records.  

2.  The applicant states, in effect, that he was young at the time and did not have the experience to defend himself.  He states that he was charged with being absent without leave (AWOL) for 6 days because the page in the sign-in book where he signed his name had been removed, even though he was present and accounted for on all morning reports.  He concludes by stating that his performance was one to be proud of.  He received excellent evaluations and he was promoted from private/E-1 to sergeant/E-5 in a short period of time.  He would like to clear his record so he may receive the Good Conduct Medal. 

3.  The applicant provides a copy of a doctor’s statement, dated 20 December 2007; a copy of a Department of Veterans Affairs letter, dated 29 August 2003; a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 11 March 1965; a copy of his DA Form 24 (Service Record); and a copy of his DA Form 20 (Enlisted Qualification Record) 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 records show he enlisted in the Regular Army for a period of 3 years on 6 March 1962.  He completed basic combat and advanced individual training and was awarded military occupational specialty 541.60 (Railway Section Foreman).  He was assigned to Company G, 5th Training Regiment, U.S. Army Training Center, Infantry, Fort Dix, NJ.

3.  On 12 December 1962, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 5 December through 12 December 1962.  There is no evidence to indicate the applicant was offered punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for this charge.  But he consented to trial by court-martial.  On 14 December 1962, the applicant pled guilty at a summary court-martial to the charge.  The Court sentenced him to a forfeiture of $28.00 pay. 

4.  The sentence was adjudged and approved on 14 December 1962.  

5.  On 17 December 1962, an official of the Fort Dix, NJ, Staff Judge Advocate (SJA) reviewed/examined the charge, specification, and sentence of the summary court-martial and found it legally sufficient.  

6.  The applicant’s records also show he was promoted through the ranks to private first class (Permanent) on 6 February 1963, specialist four (Temporary) on 10 October 1963, specialist four (Permanent) on 22 July 1964, and sergeant (Permanent) on 22 July 1964.  

7.  The applicant’s records do not contain any DA Forms 2726 (Record of Proceedings under Article 15 of the UCMJ).

8.  The applicant’s records further show he was honorably separated in the rank/grade of sergeant/E-5 and transferred to the U.S. Army Reserve Control Group on 11 March 1965.  The DD Form 214 he was issued shows he completed 3 years of creditable active military service.  Item 32 (Remarks) of this form shows the applicant had 6 days of lost time, under Title 10, U.S. Code, section 972, from 5 December 1962 to 10 December 1962.  

9.  Army Regulation 640-98 (Filing of Adverse Matter in Individual Records and Review of Intelligence Files Consulted Prior to Taking Personnel Action), in effect at the time, provided, in pertinent part, that no adverse matter would be made a part of an individual’s record without his knowledge and an opportunity being afforded him either to make a written statement in reply to the adverse information, communication, or report, or to decline, in writing, to make such a statement.  

10.  Army Regulation 600-37 (Unfavorable Information) incorporates the provisions of Army Regulation 604-11 and Army Regulation 640-98 and updates the policies and procedures for resolution of unfavorable information.  This regulation sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

11.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) (currently in effect) provides policies, operating tasks, and steps governing the Military Personnel Records Jacket (MPRJ).  The MPRJ has been eliminated for active Army Soldiers; however, prior to its elimination, the regulation provided that certain documents were filed in the Soldier's MPRJ in accordance with Table 6-1 of this regulation.  Table 6-1 stated in pertinent part that the DD Form 2329 (Record of Trial by Summary Court-Martial) would be filed together with the DD Form 458 (Charge Sheet) and Memorandum, opinion or letter of legal review in the MPRJ.  It was filed only when there was a finding of guilty on at least one specification.  It is removed if all charges and specifications are later dismissed or if all findings of guilty have been reversed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Article 15 that punished him for lost time due to being AWOL should be removed from his record.  

2.  The applicant's record is void of an Article 15 pertaining to this offense or any other offense.  His record, however, contains a summary court-martial that convicted him for lost time.  The evidence of record shows the applicant was informed of the charge against him and consented to trial by court-martial.  He pled guilty to the specification of being AWOL and was sentenced to a forfeiture of pay.  The proceedings were reviewed by an SJA official who found the court-martial legally sufficient.  The summary court-martial is properly filed in his MPRJ in accordance with the applicable regulation in effect at the time.

3.  There is no evidence in the available record and the applicant did not provide evidence that shows he was erroneously convicted, due to a page being removed from the sign-in book.  Additionally, there is no evidence available to show the court-martial was unjust.

4.  In order to remove a document from the MPRJ, there must be clear and convincing evidence showing that the document is untrue or unjust.  The applicant provided no such evidence to this Board.  Therefore, the court-martial is properly filed and should not be removed from his MPRJ.

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 did not submit evidence that would satisfy this requirement, therefore, relief should not be granted.

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)                                         AR20090003523



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ABCMR Record of Proceedings (cont)                                         AR20090003523



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