IN THE CASE OF:
BOARD DATE: 1 OCTOBER 2009
DOCKET NUMBER: AR20090011531
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, reconsideration of his earlier petition for removal of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) from his Official Military Personnel File (OMPF).
2. The applicant states, in effect, that his actions were not "phantom actions" or a "lack of duty" but rather a safety and health concern.
3. The applicant provides a self-authored letter, two Standard Forms (SF) 600 (Chronological Record of Medical Care), and an SF 513 (Clinical Record - Clinical Record) as new evidence in support of his application.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090000145, on 9 June 2009.
2. The applicant provided a self-authored letter, two Standard Forms 600, and a Standard Form 513 which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.
3. On 19 December 1974, the applicant accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to obey a lawful order from a superior noncommissioned officer (NCO) on 12 December 1973. His punishment for this offense was a forfeiture of $110.00 per month for one month; 14 days extra duty; and reduction to private first class (PFC), which was suspended for 60 days.
4. The applicant provides two SFs 600 which identify symptoms, diagnosis, treatment, and the treating organization of his consultation with Army medical authorities from 12 December 1973 through 24 December 1974. A
12 December 1973 consultation entry shows that the applicant was treated for "T.V." [tinea versicolor or ringworm of the skin] and that he "feared chemical exposure, moving cylinders would aggravate it." The entry further shows that the applicant was given a prescription and he was not given a profile that would limit his duties.
5. The additional entries for the period 6 January 1974 through 24 December 1974 on the medical consultation sheets provided by the applicant indicate that he was treated for folliculitis [infection of hair follicle], skin irritation on his face and neck, rash on his face and cheeks from shaving, a laceration on his palm, and an overgrowth of callous in the palm of his right hand from a laceration several months earlier with a provisional diagnosis of Verruca [wart].
6. 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 3-18 contains guidance on notification procedures and explanation of rights. It states, in pertinent part, that the Soldier will be informed of the right to demand trial by court-martial.
7. Paragraph 3-28 of the military justice regulation 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 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 basis for not following the orders given to him by a superior noncommissioned officer which ultimately led to his NJP was due to his health and safety concerns was carefully considered. However, there is no evidence included in the medical consultation sheets provided by the applicant which shows that his appointed duty station was unsafe.
2. The medical consultation sheets show that the applicant was concerned that his T.V. condition may be aggravated by chemical exposure and the moving of cylinders; however, competent medical authority indicated that no profile was necessary to treat this condition and returned the applicant to normal duty without limitation. As a result, it is presumed that the proper medical authority considered the applicant's concerns but ultimately determined that the applicant's duty location was safe.
3. The applicant's sincerity concerning his contention is not in question; however, there is an insufficient evidentiary basis to grant the requested relief.
4. 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.
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 to amend the decision of the ABCMR set forth in Docket Number AR20090000145, dated 9 June 2009.
__________XXX____________
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) AR20090011531
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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