BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090006030 


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 respectfully demands that the following documents be added to his military personnel records jacket (MPRJ):  Soldier of the Month letter of commendation, Soldier of the Month certificate, certificate of training for the advanced marksman pistol, Nijmegen 100-mile march ribbon and medal citation, and immunization certificate.  Also missing from his MPRJ is his rating for his second temporary duty (TDY) assignment at Frankfurt Hospital, commendation for serving as a member of a color guard, letter charging racial discrimination in his unit and the response to that letter, and corroborative witness statements he had submitted when he accepted nonjudicial punishment (NJP).

2.  The applicant states that he verbally assaulted a German female and then physically assaulted a fellow Soldier who stood to defend her.  While he acknowledges that his actions were reprehensible and he deserved the NJP, his actions were understandable in light of his previous charges of racial discrimination in his unit.  He states that he thinks someone tampered with his records by removing collaborative statements.

3.  The applicant provides a Soldier of the Month certificate; a letter of commendation for his selection as Soldier of the Month; a certificate of training for the group marksmanship training program; a transport guide to Nijmegen, Holland; an immunization certificate and record; his letter requesting an investigation be conducted into alleged racial discrimination in his unit; an inspector general response to his request for an investigation in which the inspector general stated that his allegation of unfair treatment, harassment, injustice and discrimination was not substantiated; and two pictures of him when he was performing duties as a member of a color guard.

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 that he enlisted in the Regular Army on 27 August 1962 and was awarded the military occupational specialty of medical corpsman.

3.  He accepted NJP on 16 May 1964 for being absent without leave (AWOL).  He again accepted NJP on 9 April 1965 for being disorderly by stating in a loud voice that he was "going to beat or kill every white mother-****er in here" or words to that effect; by communicating to a German National female using certain insulting language, "I got a hundred and seventeen days left you little bitch," or words to that effect; and for assaulting the German National female by raising his hand to strike her, thereby placing her in fear of bodily harm.

4.  The applicant's military records contain his DA Form 24 (Service Record) which reflects his assignments and the ratings he received during those assignments.

5.  He was honorably released from active duty on 16 August 1965 due to having insufficient time left on his enlistment to be assigned to another unit after returning to the United States from an overseas assignment.

6.  The applicant's military records contain his complete health records to include his immunization record.

7.  Army Regulation 640-10 (Individual Military Personnel Records), in effect at the time which provided the rules for filing documents in the official military personnel file (OMPF) and MPRJ, stated that exceptions to the appendix (Document Form List) will not be made without the specific approval of the proponent of that regulation.  In pertinent part, the appendix stated that:

	a.  badges, bars, and tabs (with the exception of marksmanship badges) will be filed in MPRJ but not the OMPF;

	b.  correspondence and certificates that award badges, service medals, and unit awards for which no orders are published will be filed in both the MPRJ and OMPF;

	c.  letters of appreciation and commendation only for personnel named in the basic letter will be filed in both the MPRJ and OMPF; and

	d.  DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) will be filed in accordance with Army Regulation 27-10 (Military Justice).

8.  Army Regulation 27-10 stated that a DA Form 2627 will be used to record all actions taken under Article 15 and that form would be permanently filed in the MPRJ.

DISCUSSION AND CONCLUSIONS:

1.  Army Regulation 640-10 provided for the filing of letters of commendation in a Soldier's MPRJ.  As such, it would be appropriate to now file his Soldier of the Month letter of commendation in his MPRJ.

2.  There are no provisions in Army Regulation 640-10 to file the certificate he received for being named Soldier of the Month, his certificate of training for the advanced marksman pistol, the photographs of him, and his Nijmegen 100-mile march ribbon and medal citation.  As a practical matter, however, these documents will now be filed in his records as part of this Record of Proceedings.

3.  Since the applicant's records contain his complete medical records to include his immunization record, the immunization certificate he submitted is redundant.  The information contained in that certificate was consolidated on the applicant's immunization record.  As such, there is no basis for filing this certificate in his records.

4.  All of the applicant's ratings are contained on his DA Form 24.  As such, and in view of the lack of a document showing another rating for the applicant's second TDY at Frankfurt Hospital, there is no basis for granting this portion of his request.
5.  The applicant has not submitted his commendation for serving as a member of a color guard.  As such, there is no document to be considered to be included in his MPRJ regarding his commendation.

6.  As for the corroborative witness statements he had submitted when he accepted NJP, the applicant initially did not submit the witness statements he wants to be included in his MPRJ.  Further, there are no provisions to file anything other than the DA Form 2627-1 in the MPRJ when a Soldier accepts NJP.  As for the applicant's statement that his actions were understandable in light of his previous charges of racial discrimination in his unit, assaulting people is never understandable or acceptable in the eyes of the law unless such action is taken in self defense.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x_____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by filing the Soldier of the Month letter of commendation dated 11 March 1964 in his MPRJ.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to filing his Soldier of the Month certificate, certificate of training for the advanced marksman pistol, Nijmegen 100-mile march ribbon and medal citation, photographs of him, immunization certificate, rating for his second TDY at Frankfurt Hospital, commendation for 

serving as a member of a color guard, letter charging racial discrimination in his unit and the response to that letter, and corroborative witness statements he had submitted when he accepted NJP.



      ___________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)                                         AR20090006030



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ABCMR Record of Proceedings (cont)                                         AR20090006030



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