IN THE CASE OF:
BOARD DATE: 4 February 2010
DOCKET NUMBER: AR20090010907
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 rank of specialist four (SP4)/E-4 that was taken from him as a result of court-martial proceedings be restored.
2. The applicant states that he was found not guilty of the charges brought against him at a court-martial on 15 December 1965.
3. The applicant provides a third-party letter, dated 30 March 2009, in support of this 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 applicants 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 applicants 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 16 January 1963. He completed initial entry training and was awarded military occupational specialty 11B (Light Weapons Infantryman). He departed for duty in Hawaii on 12 June 1963 and was assigned to Headquarters and Headquarters Company, 27th Infantry Regiment. This unit made a permanent change of station to the Republic of Vietnam on 6 January 1966. On 14 December 1966, the applicant was honorably released from active duty. Item 3a (Grade, Rate, or Rank) and item 3b (Date of Rank) of the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) show his rank as private first class (PFC)/E-3 effective 27 September 1965.
3. The applicant's military records show that the highest rank he attained while on active duty was SP4/E-4 effective 20 April 1965. However, on 27 September 1965, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a post regulation. His punishment consisted of a reduction in rank and pay grade from SP4/E-4 to PFC/E-3, 14 days of extra duty, and restriction for 14 days. He did not demand a trial by court-martial in lieu of this NJP and he did not appeal this punishment.
4. On 15 December 1965, a summary court-martial found the applicant not guilty of unlawfully striking a woman in the face with his fist on or about 12 November 1965.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his rank of SP4/E-4 taken from him at a court-martial should be restored.
2. While the applicant contends that his rank of SP4/E-4 was taken from him during a court-martial on 15 December 1965, the evidence clearly shows that he was reduced in rank to PFC/E-3 on 27 September 1965 after accepting NJP under Article 15 of the UCMJ for failing to obey a post regulation.
3. 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 this requirement. In view of the foregoing, there is no basis for granting relief to the applicant in this case.
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.
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