BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100021423 


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, the removal of a record of nonjudicial punishment (NJP) dated 7 July 1988 from his official records, compensation of $700.00 for items that were lost in his Household Goods (HHGs) stored at government expense for which he was never paid, and promotion to the pay grade of E-7.

2.  The applicant states, in effect, that when he filed a claim for missing items from his HHGs stored at government expense, NJP was unjustly imposed against him for filing a false claim.  He goes on to state that he never received payment for the lost items and he was supposed to be promoted to the pay grade of E-7; however, the imposition of NJP prevented that promotion from taking place.  Accordingly, he should be restored to the pay grade of E-7, a rank he would have attained had the NJP not been unjustly imposed against him. 

3.  The applicant provides:
* Two letters explaining his application
* Five third-party letters submitted on behalf of the applicant during hius appeal of his NJP 
* A copy of a personal property inventory sheet

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 enlisted in the Regular Army on 8 June 1973.  He completed his basic training at Fort Polk, Louisiana and his advanced individual training as a personnel specialist at Fort Ord, California.  He remained on active duty through a series of continuous reenlistments and was promoted to the pay grade of E-6 on 5 August 1987.

3.  On 7 July 1988, while stationed at Fort Sill, Oklahoma, NJP was imposed against him for submitting a false official claim against the government.  His punishment consisted of a reduction to the pay grade of E-5.  The applicant appealed the punishment and it was denied by the successor in command of the imposing officer.

4.  On 10 March 1991, he applied to the Board requesting the removal of the record of proceedings of NJP from his official records and reinstatement to the pay grade of E-6.  The Board denied his appeal on 25 July 1991.

5.  The applicant was again promoted to the pay grade of E-6 on 1 April 1992 and on 30 June 1993 he was honorably released from active duty and was transferred to the Retired list effective 1 July 1993 due to length of service.  He had served 20 years and 23 days of total active service.

6.  A review of the available records failed to show that the applicant was ever considered for or selected for promotion to the pay grade of E-7.  There is also no evidence to show that the applicant ever resolved his claim with the government.

7.  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, Uniform Code of Military Justice (UCMJ).  Paragraph 3-16d (4) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  

8.  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.  It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  The punishment was not disproportionate to the offenses and there is no evidence of any violations of the applicant’s rights.  Accordingly, there is no basis to set aside or remove the record of NJP. 

2.  The applicant’s contention that he should be promoted to the pay grade of E-7 because he was supposed to be promoted before he was reduced in grade has been noted and found to lack merit.  The applicant had 11 months in grade when he was reduced to the pay grade of E-5 and only 14 months in grade when he retired.  Accordingly, he was never in the zone of consideration for promotion to the pay grade of E-7 and there is no evidence in the available records to show otherwise.

3.  The applicant’s contention that he was never reimbursed for the property that was lost from his HHGs storage has been noted and found to lack merit because he had failed to show that his claim was denied or that he pursued the claim after NJP was imposed.  Therefore, absent evidence to show that he was unjustly denied payment on a valid claim, there is no basis to grant his request.  Also, due to the passage of time, it is impossible for the Army to find or reconstruct claims filed in 1988, as normal document retention procedures do not require permanent maintenance of such records.  Since the applicant’s failure to pursue his claim much earlier makes it impossible to assess his contentions, this asserted error is denied. 

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 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 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)                                         AR20100021423





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ABCMR Record of Proceedings (cont)                                         AR20100021423



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