IN THE CASE OF:	

		BOARD DATE:	  1 December 2009

		DOCKET NUMBER:  AR20090008325 


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 his nonjudicial punishment (NJP) be set aside and that the DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) dated 9 November 1971 be removed from his Official Military Personnel File (OMPF).

2.  The applicant states that the NJP under Article 15 of the UCMJ should be removed because he was not the person responsible for the misconduct.  He contends that the incidents of drunk and disorderly and assault were done by another person.  He states that these incidents occurred shortly after he had lost his identification card.   Another individual had altered his identification card, opened a checking account in his name, and had made purchases at the Post Exchange.  The applicant further contends that the signature on the NJP is a forgery, and suggests that a review of other documents in his OMPF from before and after the NJP would show it to be a forgery.

3.  The applicant provides, in support of his application, copies of the DA Form 2627-1, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), orders discharging him from the U.S. Army Reserve (USAR), DA Form 20 (Enlisted Qualification Record), The Adjutant General's Office (TAGO) Form 166 (Statement of Service), DD Form 47 (Record of Induction), U. S. Army Recruiting Command (USAREC) Form 180 (Acknowledgment of Service Obligation), telegrams and casualty messages, a training certificate, award orders, DA Form 2496 (Disposition Form) indicating attendance at a drug abuse prevention and control class, and two Standard Forms (SF) 88 (Report of Medical Examination).
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.  On 20 January 1971, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and he was awarded military occupational specialty (MOS) 62E (Crawler Tractor Operator).

3.  On 16 Jul 1971, the applicant departed Fort Leonard Wood, MO, for assignment in the Republic of Vietnam.

4.  On 30 August 1971, the applicant was assigned for duty as a crawler tractor operator with D Company, 84th Engineer Battalion (Construction).

5.  A DA Form 2627-1, dated 9 November 1971, shows the following:

	a.  that at about 2200 hours, 7 November 1971, the applicant was drunk and disorderly;

	b.  that at about 2300 hours, 7 November 1971, the applicant committed an assault upon an unknown individual by striking him about the head;

	c.  that on 9 November 1971, the company commander informed the applicant of his intention to impose NJP for his misconduct and that he had 
48 hours in which to submit matters of mitigation, extenuation, or defense;

	d.  that the applicant acknowledged the NJP on 9 November 1971;

   e.  that the applicant did not demand trial by court-martial;
   
   f.  that the applicant did not submit matters in extenuation, mitigation, or defense;
   g.  that the company commander imposed a reduction to pay grade E-2, forfeiture of $36.82 pay per month for 1 month, and 14 days of extra duty;

   h.  that the applicant did not appeal the punishment; and

   i.  that the applicant's signature and initials are affixed to Section II (Acknowledgement of Notification) and to Section IV (Acknowledgement of Imposition of Punishment) of the DA Form 2627-1.

6.  A review of the applicant's signatures on the following forms failed to provide any reasonable doubt that he did not sign the subject NJP:

	a.  DD Form 398 (Statement of Personal History, undated;

	b.  DA Form 428 (Application for Identification Card), dated 21 January 1971;

	c.  DD Form 369 (Police Record Check/Fingerprint Card), dated 25 January 1971;

	d.  DA Form 137 (Installation Clearance Record), dated 9 April 1972;

	e.  DD Form 214, effective 12 April 1972; and

	f.  DD Form 149 (Application for Correction of Military Record), dated 27 April 2009.

7.  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.  It states, in pertinent part, that the basis for any set aside action is a determination that under all of the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear Injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.

8.  Army Regulation 27-10, in effect at the time, provided that records of nonjudicial punishment, other than for minor punishments consisting of 14 days or less restriction and/or extra duty, detention or forfeiture of pay for not more than 1 month, correctional custody for 7 days or less, admonition or reprimand, or any combination thereof, for enlisted Soldiers serving on active duty for 3 years or less, would be filed in the performance portion of the OMPF.



9.  Army Regulation 600-8-104 (Military Personnel Information Management /
Records) provides, in pertinent part, that all personnel information recorded under the authority of this regulation is the property of the United States Government.  Once recorded, it will not be removed except as provided by law or this regulation.  Types of authorized military personnel files are the OMPF, Military Personnel Records Jacket (MPRJ), Career Management Individual File (CMIF), and the Classified Personnel Record (CPR).  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from a fiche or moved to another portion of the fiche unless directed by one or more of the following:  (1) ABCMR;  (2)  Department of the Army Suitability Evaluation Board (DASEB);  (3)  Army appeal boards;  (4)  Chief, Appeals and Corrections Branch, U.S. Army Human Resources Command (USAHRC)  (5)  OMPF custodian when documents have been improperly filed;  (6)  Commander, USAHRC, ATTN: HRC-PDO-PO, as an approved policy change to this regulation;  (7)  Chief, Appeals Branch, USAHRC, St. Louis, MO;  (8)  Chief, Appeals Branch, National Guard Personnel Center.   Documents designated for transfer from the performance or service portion will be placed in the restricted portion, if authorized.  When discovered by the custodian or requested by the Soldier concerned, transfer restricted fiche documents mistakenly filed on the performance or service portion to the restricted portion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he did not commit the misconduct resulting in his NJP or that he had signed the DA Form 2627-1.  Accordingly, he wants the record of NJP removed from his OMPF.

2.  The evidence in this case indicates that NJP was properly imposed against the applicant in accordance with the applicable laws and regulation in effect at the time, with no indications of any procedural errors that may have jeopardized his rights.

3.  The evidence also indicates that he was afforded due process, in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.

4.  The applicant accepted NJP in lieu of demanding trial by court-martial.  Furthermore, did not appeal the punishment imposed to a higher authority.

5.  The applicant denies that the signatures on the NJP are his.  However, he has not provided any convincing evidence, such as an opinion from an expert 
handwriting analyst, showing that the signature on the NJP is not his.  It is inconceivable that his commander punished a different person who then signed the applicant's name on the NJP.

6.  Therefore, lacking evidence to establish that the applicant did not commit the misconduct for which NJP was imposed or that he did not sign the appropriate sections of the NJP, there appears to be no basis to set aside the NJP.

7.  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 the aforementioned requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090008325



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ABCMR Record of Proceedings (cont)                                         AR20090008325



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