IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090013442 


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 that the nonjudicial punishment (NJP) that was imposed on 10 January 1970 be removed from his records and that as a result he be awarded the Army Good Conduct Medal.

2.  The applicant states, in effect, the weather was bad in Nashville, TN and he could not get a flight out.  Planes were snowed in.  He states he called a recruiter and was told to inform his superiors in Oakland, CA of the snow storm in Tennessee when he returned.  He caught the first flight he could get to California and returned to his unit.  He states that he has been denied award of the Army Good Conduct Medal because of the NJP action.

3.  The applicant provides a copy of the weather report for Nashville International Airport, Nashville, TN 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 military personnel records show he enlisted in the Regular Army on 6 August 1969 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 71B (clerk typist).

3.  On 10 January 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his unit, Overseas Replacement Station, U.S. Army Personnel Center, Oakland, CA, from on or about 7 January until on or about 
9 January 1970.  The NJP included a forfeiture of $10.00 pay for one month.  The applicant did not appeal his punishment.

4.  The applicant served with 40th Ordnance Company in the Republic of Vietnam from 19 January 1970 to 2 December 1970.  He was promoted to private first class on 23 January 1970 and to specialist four on 3 May 1970.

5.  On 9 February 1972, the applicant was released from active duty.  He had completed 2 years, 6 months, and 2 days of active service that was characterized as honorable.  He had 2 days time lost.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not show he was awarded the Army Good Conduct Medal.

6.  The applicant's records show he received conduct and efficiency ratings of “excellent” throughout his service.

7.  The applicant submitted a weather report, obtained from the internet, that shows weather conditions at Nashville International Airport, Nashville, TN during the period from 5 January to 12 January 1970.  This report shows the airport had 2.4 inches of snow on 6 January, a trace of snow on 7 January, .4 inches of snow on 8 January, and a trace of snow on 9 January.  The report does not indicate the airport was closed.

8.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the nonjudicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; to determine whether the Soldier committed the offense(s) where 
Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and to determine the amount and nature of any punishment if punishment is appropriate.

9.  Army Regulation 27-10, in effect at the time, stated that when punishment is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action would be recorded on a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ).  In the case of those Soldiers in an enlisted status and who had  completed 3 years or less of active Federal Military service at the time of the offense the original DA Form 2627 was permanently filed in the efficiency portion of the Official Military Personnel File (OMPF).

10.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded on a selective basis to each Soldier who distinguished himself from among his fellow Soldiers by his exemplary conduct, efficiency, and fidelity while in an enlisted status.  There was no right or entitlement to the Army Good Conduct Medal until the immediate commander had made a positive recommendation for the award, and until the awarding authority had announced the award in General Orders.

11.  Army Regulation 672-5-1, in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who had completed a qualified period of active duty enlisted service.  This period was each 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.  Ratings of "unknown" for portions of the period under consideration were not disqualifying.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the NJP issued on 10 January 1970 should be removed from his records and he should be awarded the Army Good Conduct Medal.

2.  The weather report submitted by the applicant shows the airport had 2.8 inches of snow during the period 6 - 8 January 1970.  However, the report provides no information concerning airport closure or flight cancelations.  

3.  It is reasonable to conclude the officer imposing the applicant's NJP exercised discretion in the NJP process for the applicant's offense.  Therefore, it is reasonable to conclude the officer considered any mitigating factors, such as weather conditions, presented by the applicant when imposing punishment for the applicant’s 2 day period of AWOL in that he only imposed a $10.00 forfeiture of pay for one month.

4.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded that the Article 15 was appropriately filed in the OMPF.

5.  Once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities.  The applicant has not shown that his Article 15 was improper or unjust, therefore, the applicant is not entitled to removal of the Article 15 from his OMPF.

6.  Records are not corrected solely to ensure an individual qualifies for benefits or awards.

7.  There is no evidence the applicant's immediate commander made a positive recommendation for the award of the Army Good Conduct Medal.  The applicant received one NJP for a 2 day period of AWOL.  It is reasonable to believe he was not issued the Army Good Conduct Medal and his record is not in error.

8.  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 that 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 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)                                         AR20090013442



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ABCMR Record of Proceedings (cont)                                         AR20090013442



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