BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100013061 


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:

* portion of the punishment resulting in him being reduced from specialist (SPC)/E-4 to private first class (PFC)/E-3 due to nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 31 October 2003 be set aside
* his rank be restored to SPC/E-4 with all back pay and allowances to April 2000 
* his date of rank to SGT/E-5 be changed to November 2001 with all back pay and allowances as of this date
* that he be deemed entitled to retirement points and allowances for his period of involuntary separation 

2.  He states that Army Regulation 27-10 (Military Justice), dated 16 November 2005, chapter 3, section V, paragraph 3-28, allows punishment to be set aside due to a clear injustice when unusual circumstances exists.  He also states he has exhausted all other means for correction of his record as directed by the Board.  

3.  He provides:

* two DA Forms 4187 (Personnel Action)
* DA Form 3355-1-R (U.S. Army Reserve (USAR) Promotion Point Worksheet)
* DA Form 1610 (Request and Authorization for TDY [Temporary Duty] Travel of DOD [Department of Defense] Personnel)
* DA Form 31 (Request and Authority for Leave)
* assignment orders, dated 11 July 2003
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* DA Form 2823 (Sworn Statement)
* three memoranda
* two letters addressed to a Member of Congress
* three letters from a Member of Congress
* discharge orders, dated 9 April 2007
* numerous electronic messages
* Army Board for Correction of Military Records (ABCMR) Record of 
   Proceedings, dated 20 February 2008
* revocation orders, dated 27 March 2008
* letter from Lufthansa, Legal Department
* memorandum from a Legal Assistance Attorney
* online application, dated 8 October 2008
* letter from the ABCMR
* active duty orders, dated 10 April 2009
* listing of requests, dated 20 April 2009
* DA Form 4187 (Personnel Action)
* reassignment orders, dated 24 April 2009
* request to add documents to Official Military Personnel File (OMPF) 
* Chronological Statement of Retirement Points, dated 25 April 2009

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 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 enlisted in the USAR on 13 April 1999.  

3.  He was promoted to SPC with an effective date and date of rank of 1 February 2000.  
4.  In October 2000, he was granted a waiver for time-in-service and time-in-grade and was recommended for promotion to SGT by his chain of command.  He was referred to a unit promotion board.  The unit promotion board was held and on 27 October 2000, the promotion authority certified the applicant had been recommended for promotion by a valid promotion board.  His service record doesn’t contain orders which show he was promoted to SGT.  

5.  He was mobilized with his unit, 143rd Transportation Command, and served on active duty from 10 February 2003 through 24 April 2004 in support of Operations Enduring Freedom and Iraqi Freedom.  His service was in Kuwait.

6.  While in Kuwait, he accepted NJP under Article 15, UCMJ on 28 October 2003 for the following offenses:  

* Being absent without leave (AWOL) from 29 September to 1 October 2003
* Behaving with disrespect towards his superior commissioned officer
* Failing to go to his appointed place of duty 
* Disobeying a lawful order from a noncommissioned officer (NCO)
* Treating a superior NCO with contempt 
* Violating a lawful general order by wrongfully possessing alcohol

7.  He acknowledged that he had been afforded the opportunity to consult with counsel, did not demand trial by court-martial, requested a closed hearing in the Article 15 proceedings, declined a person to speak in his behalf, and elected to present matters in person.  

8.  His punishment consisted of a reduction to PFC/E-3, 60 days of restriction, and he was also ordered to have no contact with two fellow service members.  

9.  The imposing official directed the original DA Form 2627 be filed in the restricted portion of his OMPF.  He was advised of his right to appeal to the commander of the 377th Brigade within 5 calendar days.  He elected to appeal the punishment.  The appeal was denied.  

10.  He reenlisted in the USAR on 3 April 2006 for a period of 6 years.  

11.  On 9 April 2007, he was discharged from the USAR under the provisions of Army Regulation 135-178 (Army National Guard and Army Reserve Enlisted Administrative Separations) with a general discharge.  He was discharged in the rank of PFC.  



12.  He applied to the ABCMR on 5 December 2007 requesting reinstatement in the USAR, restoration of his rank of SPC/E-4, and promotion to SGT/E-5.  On 10 March 2008, the ABCMR corrected his records by:

	a.  revoking Orders 07-099-00016, dated 9 April 2007, showing the applicant was discharged under honorable conditions; and

	b.  issuing him new orders discharging him with an honorable characterization of service.

13.  On 12 September 2008, he applied to the ABCMR again requesting:

* pay and allowances from July 2004 to March 2008 based on involuntary separation
* restoration of the rank of SPC based on enlistment (not reenlistment) contract, dated April 2006
* retirement points, education benefits, Montgomery GI Bill

14.  On various dates in 2008, he submitted requests through his chain of command for correction of his records, including his rank, pay, and removal of an Article 15.  His requests were denied.  

15.  On 12 November 2008, a Legal Assistance Attorney submitted a request to the Commander, 143rd Sustainment Command (Expeditionary), Orlando, FL, to set aside the applicant’s punishment executed by the 1 November 2003 Article 15.  

16.  In a 10 December 2008 letter, the ABCMR administratively closed his 12 September 2008 request and informed him that the Acting Deputy Assistant Secretary had determined he was properly reduced to PFC as a result of an Article 15 and that he was not subsequently promoted to SGT.  As a result, his request for promotion was denied.  It was determined he had not exhausted all administrative remedies available to him.  There was no evidence available which indicated he had pursued the additional actions through his chain of command or normal USAR personnel channels to the U.S. Army Human Resources Command, St. Louis, MO.  

17.  On 18 April 2009, he submitted a request for correction of his records through the Commander, 7th Combat Support Company, Unit 23152 to the Commander, 313th Combat Support Center to:

* set aside the punishment in an Article 15, dated November 2003
* correct date of rank to SPC/E-4, effective 1 February 2000
* correct date of rank to SGT/E-5, effective 1 November 2000
* correct/remove any flagging action
* remove unsatisfactory report, dated 7 June 2004
* correct retirement points to reflect the years 2004 through 2007

18.  On 19 April 2009, the appropriate authority disapproved his request submitted through his command.  

19.  He was promoted to SPC with an effective date and date of rank of 19 April 2009.  

20.  His Chronological Statement of Retirement Points, dated 25 April 2009, does not list retirement points for the retirement year 1 April 2005 through 31 March 2006.  

21.  He was promoted to SGT with an effective date and date of rank of 14 July 2010.

22.  His Chronological Statement of Retirement Points printed on 16 February 2011 shows retirement year beginning 13 April 2005 through retirement year ending 12 April 2009 and he received:  

Beginning Date
Ending Date
Inactive Duty Pts
Active Duty Pts
Qualifying for Retirement
Total Points Creditable
20050413
20060413
022
0000
00 00 00
0037
20060413
20070413
012
0000
00 00 00
0027
20070413
20080412
021
0014
01 00 00
0050
20080413
20090412
029
0000
00 00 00
0044
23.  Army Regulation 27-10 provides the applicable policies for administration of NJP:  

   a.  Paragraph 3-2 states that NJP may be imposed to correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627.  

   b.  Paragraph 3-18 (Notification and explanation of rights) states, in part, punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).  If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier.  The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed.

   c.  Paragraph 3-28 (Setting aside and restoration):
   
		(1)  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  
   
   (2)  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.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. 

      (3)  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 

   (4)  In cases where administrative error results in incorrect entries on 
DA Form 2627 or DA Form 2627-1 the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment. 

   d.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment, the commander will record the basis for this action according to notes 11 and 12, DA Form 2627; notes 9 and 10, DA Form 2627-1; or DA Form 2627-2 (see paragraph 3-38b).  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action. 

   e.  Paragraph 3-37b(1) states that for Soldiers SPC or corporal (CPL) and below (prior to punishment) the original will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first.

24.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that 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 ABCMR; DASEB; Army Appeals Board, Chief of Appeals and Corrections Branch, Human Resources Command, OMPF custodian when documents have been improperly filed; Chief of the Appeals Branch of the Army Reserve Personnel Center, and the Chief of the Appeals Branch of the National Guard Personnel Center.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant’s contention that his punishment should be set aside based on Army Regulation 27-10.  His service record does not indicate a clear injustice occurred or that unusual circumstances existed at the time of his punishment.  

2.  By regulation, a “clear injustice” means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  Additionally, the governing regulation states the power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  Absent evidence which shows unusual circumstances existed, it is beyond the timeframe to set aside an executed punishment.  

3.  Based on the available evidence, it appears the imposing commander determined the applicant committed six separate offenses and imposed the appropriate punishment authorized under his jurisdiction.


4.  In the absence of evidence to the contrary, it must be presumed that the applicant's reduction in grade was correct.  Therefore, there is no basis for setting aside the applicant's reduction in rank from SPC/E-4 to PFC/E-3 that resulted due to NJP, or restoring his rank to SPC/E-4 and providing him back pay and allowances to April 2000.  

5.  In accordance with Army Regulation 27-10, the DA Form 2627, Record of Proceedings under Article 15, UCMJ, may only be filed locally when the Soldier involved is a SPC/CPL or below.  Therefore, it would be appropriate to remove his Article 15, dated 31 October 2003, from the restricted portion of his OMPF.  

6.  He was reinstated into the USAR effective 9 April 2007 in the rank of PFC.

7.  The available evidence shows he was promoted to SPC on 19 April 2009 and to SGT on 14 July 2010.  

8.  His service record does not indicate he was subsequently promoted to SPC or SGT prior to his discharge on 9 April 2007.  Therefore, he is not eligible for promotion to SGT any earlier than the date he already has.

9.  His request for retirement points and allowances for the period of his involuntary separation was considered.  However, his Chronological Statement of Retirement Points shows he received retirement points during the retirement year beginning 13 April 2007 through 12 April 2009.  His service record is void of evidence which indicates he is eligible for any additional retirement points or allowances.  Therefore, there is no basis for granting his request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing his Article 15, UCMJ, dated 31 October 2003, from the restricted portion of his OMPF.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to:  

* setting aside the reduction in rank from SPC/E-4 to PFC/E-3 that resulted from the imposition of NJP under Article 15, UCMJ, dated 31 October 2003
* restoring his rank and pay grade of SPC/E-4 with all back pay and allowances backdated to April 2000 
* restoring his rank and pay grade of SGT/E-5 with all back pay and allowances backdated to November 2001
* issuing him retirement points and allowances for his period of involuntary separation 



      _______ _ 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)                                         AR20100013061



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ABCMR Record of Proceedings (cont)                                         AR20100013061



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