IN THE CASE OF:	  

		BOARD DATE:	  20 October 2009

		DOCKET NUMBER:  AR20090009810 


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, correction of his records to show that he was restored to the rank of specialist five/pay grade E-5.

2.  The applicant states that on or about 5 November 1968, he was demoted to the pay grade of E-4 due to a misunderstanding.  He states that he was told that he would be restored to the rank of specialist five before he left Vietnam.  He states that he did not leave Vietnam until 3 July 1969 and that every time he inquired about his rank he was told that the paperwork had been submitted for review.  He states that he never heard anything and he believes that his stripe was taken in error.  He states that he performed his duties and that he served his country.  He concludes by stating that he would like his records corrected. 

3.  The applicant provides no additional documentation 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.  On 28 November 1966, the applicant enlisted in the Regular Army in Nashville, Tennessee, for 3 years, in the pay grade of E-1.  He successfully completed his training and served as a personnel management specialist.

3.  He was promoted to the pay grade of E-2 on 28 March 1967, he was promoted to the pay grade of E-3 on 28 July 1967, and he was promoted to the pay grade of E-4 on 30 October 1967.

4.  On 13 December 1967, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his unit without leave (AWOL) from 10 December 1967 until 
11 December 1967.  His punishment consisted of a reduction to the pay grade of E-3 (suspended for 3 months), a forfeiture of pay in the amount of $20.00, and
14 days of extra duty.  The applicant elected not to appeal the punishment.

5.  On 19 March 1968, the applicant was promoted to the pay grade of E-5 and he was transferred to Vietnam on 30 April 1968.

6.  On 5 November 1968, NJP was imposed against the applicant for failure to obey a lawful order from his superior noncommissioned officer to complete certain administrative actions which had been referred to him for action prior to departing his place of duty.  His punishment consisted of a reduction to the pay grade of E-4.  The applicant elected not to appeal the punishment.

7.  The applicant returned to the Continental United States on 29 June 1969 and on 3 July 1969, he was honorably released from active duty (REFRAD) under the provisions of Army Regulation 635-200, chapter 5, as an overseas returnee and he was transferred to the United States Army Reserve Control Group (Reinforcement) to complete his Reserve obligation.  He had completed 2 years, 7 months and 6 days of total active service.

8.  The DD Form 214 that he was furnished at the time of REFRAD shows his rank as specialist four, his pay grade as E-4, and his date of rank as 5 November 1968.

9.  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.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for any set aside action is a determination that, under all 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.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his records should be corrected to show his rank was restored to specialist five was considered and found to lack merit.  The applicant’s records show he was reduced in rank as a result of NJP that was imposed against him in accordance with the applicable regulation.  There is no evidence in the applicant’s record, nor has he provided any evidence, to show the action taken against him was in error or unjust.

2.  The applicant’s contention that he was told his rank would be restored also lacks merit.  There is no evidence in his records that shows any action was taken to restore his rank to specialist five.  Additionally, the applicant had the option of declining NJP and demanding a trial by court-martial whereby he could have asserted his innocence to what he now contends was a misunderstanding.  Accordingly, he was properly reduced in rank as a result of NJP and there is no basis to restore it at this time.

3.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090009810



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ABCMR Record of Proceedings (cont)                                         AR20090009810



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