IN THE CASE OF:	

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018778 


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 his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 23 September 1964, be removed from his official military personnel file (OMPF).  

2.  The applicant states the charge of dereliction of duty is false because he has never been derelict in the performance of his duties.  It was not possible to have committed the offense because he was on a valid pass and out of the country at the time.  He had been out of the United States for nearly 5 years and he was anxious to see his family again.  A few days before the date of the Article 15, he was on a valid 3 day pass in Holland.  When he returned from Holland, his acting commander wanted to show his authority, therefore, he gave him the choice of either signing the Article 15 or taking a court-martial.  He signed the document because he did not want to miss his rotation home.  Article 15s were considered temporary back then and it should have been destroyed upon his transfer out of the unit.  He did not know the Article 15 was placed in his file until he printed a copy from an old microfiche.  It should never have been placed on his permanent file.

3.  The applicant also states that he served two tours in Vietnam; he served as a recruiter and as a very successful first sergeant in pay grade E-7.  He was the one who conceived removing the function of ammunition forecasting from the S-4 to the S-3.  It was so successful that to this day, nearly 30 years later, the system is still as it was designed so long ago.  After all of this and then some, he was never given an individual award.  No Army Commendation Medals, no Bronze Star Medals, and no other individual recognition.  Worst of all, he was recommended for promotion to pay grade E-8, and of course he was never promoted.  He sincerely feels that this unjustified and possibly illegal Article 15 for an offense that was never committed is what hurt him for so many years.  What he lost cannot be made up, but he would truly be heartened to see this blight on his record removed. 

4.  In support of his application, the applicant provides copies of his Personnel Qualification Record – Part II and the 1964 Article 15.

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 records show he enlisted in the Regular Army in pay grade E-1 on 28 July 1958, for 3 years.  He was honorably released from active duty on 18 February 1960 for immediate reenlistment and he reenlisted on 
19 February 1960 for 6 years.  He served in Germany from 2 April 1960 to 28 September 1964.  

3.  On 25 September 1964, he accepted punishment under Article 15, UCMJ, for dereliction in the performance of his duties in that he negligently failed to keep his unit (Charge of Quarters) notified as to his whereabouts, thereby missing a Readiness Test on 22 September 1964.  The Article 15 does not show he received any form of punishment, reduction in grade, forfeiture, extra duty, or restriction.  He did not appeal the punishment.

4.  He was honorably discharged from active duty in pay grade E-5 on 18 February 1966 at the expiration of his term of service.  

5.  He reenlisted in the Regular Army in pay grade E-5 on 16 August 1966, for 3 years.  He served continuously on active duty until he was honorably discharged in pay grade E-7 on 31 January 1979, for the purpose of retirement.  He was credited with completion of 20 years and 7 months of total active service. 
6.  Army Regulation 27-10 (Military Justice), dated 26 November 1968, Chapter 3, specified that nonjudicial punishment was imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  Nonjudicial punishment could be set aside, removed, or changed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  DA Form 2627 would be used to record all action taken under Article 15 and prepared in an original and 3 copies.  The original would be permanently filed in the OMPF and the first would be filed in the individual’s Military Personnel Record Jacket (MPRJ).  The MPRJ copy would be destroyed upon transfer of the individual from the organization or upon expiration of 2 years from imposition of the punishment.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the removal of a DA Form 2627 which was properly filed in his OMPF.  

2.  The evidence of record shows the applicant accepted punishment under Article 15, of the UCMJ, on 23 September 1964, for negligently failing to keep his unit notified of his whereabouts.  He received no reduction in grade, forfeiture, extra duty, or restriction as a result of the Article 15.  At the time the nonjudicial punishment was imposed, the applicant did not appeal the punishment.

3.  He has not provided convincing evidence that the DA Form 2627 is untrue or unjust, in whole, or in part, to support his request for removal from his OMPF.  By regulation, there must be compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record.  Absent such evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support removing the document in question from the applicant’s OMPF.  

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.  

5.  In view of the foregoing, there is no basis for granting the applicant’s requests.







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)                                         AR20090018778



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018778



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1