BOARD DATE: 23 December 2010
DOCKET NUMBER: AR20100013296
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 a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) imposed on 28 July 1998 be set aside and his rank be restored to E-4.
2. The applicant states, in effect, he has a recording of his chain of command (sergeant) saying he was not promoted because he was Caucasian.
3. The applicant provides:
* DA Form 2627
* Two letters from a Member of Congress
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 enlisted in the Regular Army on 15 September 1993 for a period of 4 years. He served as a fire support specialist. On 15 July 1997, he was honorably discharged for immediate reenlistment. He reenlisted on 16 July 1997 for a period of 5 years in pay grade E-4.
3. A DA Form 2627, dated 28 July 1998, shows that nonjudicial punishment (NJP) was imposed against the applicant for disobeying a lawful order (to ensure his hair color was in compliance with regulation). His punishment consisted of a reduction to E-3, a forfeiture of $287.00, extra duty for 14 days, and restriction for 14 days. On 29 July 1998, the applicant appealed his NJP action. On 13 August 1998, the appropriate authority considered the applicant's appeal and his punishment of forfeiture of $287.00 was remitted. On that same date, a Judge Advocate officer reviewed the applicant's NJP and his appeal and stated the proceedings were conducted in accordance with law and regulation and that the punishments imposed were not unjust or disproportionate to the offenses committed.
4. On 18 September 1998, the applicant was honorably discharged in the rank of private first class/E-3 under the provisions of Army Regulation 635-200, chapter 5, for personality disorder.
5. There is no evidence of record which shows the applicant was promoted to
E-4 following his NJP action.
6. Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice. It states a commander will personally exercise discretion in the nonjudicial process, evaluate the case to determine whether proceedings under Article 15 should be initiated, and determine whether the Soldier committed the offense where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial. It states the authority to impose nonjudicial punishment charges a commander with the responsibility of exercising the commanders authority in an absolutely fair and judicious manner. It states the imposing commander is not bound by the formal rules of evidence before courts-martial.
DISCUSSION AND CONCLUSIONS:
1. There is no evidence of record which shows the applicant was a victim of racial discrimination.
2. There is no evidence the DA Form 2627, dated 28 July 1998, was improperly imposed. It appears to have been the commander's judgment that disobeying a lawful order warranted a one-grade reduction as punishment. The Board should not substitute its judgment for that of the commander.
3. Based on the foregoing, there insufficient evidence on which to grant the requested relief.
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) AR20100013296
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