BOARD DATE:	 12 November 2009 

		DOCKET NUMBER:  AR20090007361 


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 Special Court-Martial (SPCM) Order Number 53, dated 24 February 1964, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, the SPCM orders in question were for another Soldier with the same name.  He states he was never court-martialed while in the Army and he was assigned to and serving at Fort Sill, OK, and not Fort Campbell, KY, where the SPCM occurred at the time.

3.  The applicant provides a copy of SPCM Order Number 53; and page 3, item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) 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's record shows that after having served in the Army National Guard (ARNG) from January 1960 to April 1961, he enlisted in the Regular Army (RA) and entered active duty on 14 April 1961.  On 16 May 1963, the applicant was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he held the rank/grade of specialist four (SP4)/E-4 and that he had completed a total of 2 years, 7 months, and 3 days of active military service at the time.  There is no time lost listed on the DD Form 214.

3.  On 17 May 1963, the applicant reenlisted for 6 years and he remained serving on active duty.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows he was promoted to private first class (PFC)/E-3 on
23 September 1961, to SP4 on 8 June 1962, and to sergeant (SGT)/E-5 on
26 December 1965, and that this is the highest rank/grade he attained while serving on active duty.  Item 33 shows no reductions during his active duty tenure.  Item 38 (Record of Assignments) shows he served at Fort Sill from
21 June 1963 through July 1964, when he was reassigned to Hawaii.  There are no assignment entries for Fort Campbell or Fort Benning, GA, in item 38, or entries indicating he was ever absent without leave (AWOL) from any of his units. Item 44 (Time Lost) is void of any entries indicating any periods of AWOL or any other time lost.

4.  There is no Court-Martial Record Insert Sheet (DA Form 20B) included with the applicant's DA Form 20, and with the exception of the order in question, there are no orders or other documents on file that indicate he ever underwent or was convicted by a court-martial during his active duty tenure.

5.  The applicant's OMPF contains the SPCM order in question, which was issued at Fort Campbell on 24 February 1964 and documents an SPCM conviction for two specifications of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 29 August through 29 September 1963 and from 12 November 1963 through 23 January 1964.  The unit from which the member departed AWOL as listed on these orders was Company A, 2nd Battalion, 9th Infantry Regiment, Fort Benning.  The Soldier listed on the SPCM orders has the same name as the applicant; however, the Service Number listed on the orders is different from the applicant's.  Further, the approved sentence listed on the orders included a reduction to private (PV1)/E-1.


6.  On 1 March 1969, the applicant was honorably discharged, in the rank of SGT, after completing 8 years, 4 months, and 18 days of active military service.  The DD Form 214 he was issued at the time lists no AWOL periods in item 26c (Non-Pay Periods Time Lost) and there are no other entries indicating any periods of time lost during his enlistment.

DISCUSSION AND CONCLUSIONS:

The applicant's contention that the SPCM order on file in his OMPF is not his and should be removed was carefully considered and found to have merit.  The evidence of record confirms that although he had the same name, the Serial Number of the individual who was convicted by the SPCM depicted on the orders in question was different from that of the applicant's.  The record also confirms the applicant was never assigned to either Fort Campbell or Fort Benning, and that he was never AWOL or reduced for cause while serving on active duty.  Therefore, the SPCM order in question was clearly filed in his record as a result of an administrative error and should be removed from his record at this time.

BOARD VOTE:

___x____  ___x____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing Headquarters, Special Troops, Fort Campbell, SPCM Order Number 53, dated 24 February 1964, from his record.



      __________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)                                         AR20090007361



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ABCMR Record of Proceedings (cont)                                         AR20090007361


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