IN THE CASE OF:	  

		BOARD DATE:	  31 March 2011

		DOCKET NUMBER:  AR20100023153 


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, a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) and "reprimand" be removed/set aside and that his record be corrected to show he was granted medical leave instead.  He also requests award of the Army Good Conduct Medal (AGCM).

2.  The applicant states, in effect, in regard to the Article 15 he received that he had been in a fight that was not reported and 5 days later he went home on leave.  He claims he remained at home 27 days beyond his authorized leave date in an absent without leave (AWOL) status to heal.  He claims his medical records show grounds for him to have been placed on medical leave during this period of AWOL.  He also states he received a "reprimand" from a sergeant who never took him before the battery commander and this was the basis for his being denied the AGCM.  He states the "reprimand" should be dismissed and he should be awarded the AGCM.   

3.  The applicant provides the following documents in support of his application:

* Self-Authored Statements on the Article 15 and Reprimand Issues
* DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Medical Treatment Records
* Certificates and Diplomas for Military Training and Education
* DA Form 2627



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 record shows he enlisted in the Regular Army on 7 February 1977 and he was trained in and awarded military occupational specialty (MOS) 17C (Field Artillery Target Acquisition Specialist).  

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was promoted to the rank of specialist four (SP4)/E-4) on 1 January 1978, and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private (PV2)/E-2 for cause on 6 March 1980.  Item 4 (Assignment Consideration) contains an entry indicating the applicant was not recommended for further service.  

4.  The applicant’s record shows that during his active duty tenure, he earned no individual awards and the record documents no acts of valor or significant achievement.  

5.  On 31 January 1980, while serving at Fort Polk, Louisiana, in the grade of SP4/E-4, the applicant was notified that his battalion commander was considering whether he should be punished under Article 15 of the UCMJ for being AWOL from on or about 3 January to 
30 January 1980.  

6.  The DA Form 2627 shows that on 6 February 1980 the applicant elected not to demand a trial by court-martial and instead chose for the matter to be handled by his battalion commander.  He also elected not to have a spokesperson and did not request an open hearing.  The applicant’s battalion commander imposed the following punishment on him:

* reduction to PV2/E-2


* a forfeiture of $200.00 pay for 2 months
* 30 day in correctional custody (suspended)

7.  On 8 February 1980, orders were published awarding the applicant the AGCM for the period 7 February 1977 through 6 February 1980.  

8.  On 14 February 1980, the applicant’s commander requested that the orders awarding the applicant the AGCM be revoked based on the applicant being under a suspension of favorable personnel actions (FLAGGED) and due to him being on punishment for being AWOL from 3 January through 30 January 1980.  On 26 February 1980, the AGCM orders were revoked.  

9.  On 17 February 1980, the applicant elected not to appeal the Article 15 punishment.  

10.  On 12 December 1980, the unit commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) on the applicant.  The unit commander cited the applicant’s record of non-judicial punishment (NJP) for being AWOL and stated that the applicant demonstrated a poor attitude towards his duties and a lack of promotion potential as the basis for the action.  

11.  On 13 January 1980, the appropriate authority approved the bar to reenlistment on the applicant.  

12.  On 3 February 1981, the applicant elected not to appeal the bar to reenlistment action.

13.  The applicant’s record is void of any indication that he was ever issued a formal written reprimand by a sergeant that was made a part of his official record.  

14.  The applicant’s record is also void of any medical treatment records indicating he suffered from any disabling medical condition that rendered him unfit for duty during his active duty tenure.  

15.  On 5 March 1981, the applicant was honorably separated in the rank of PV2/E-2 after completing 4 years of creditable active military service and accruing 27 days of time lost due to being AWOL.  

16.  The applicant provides medical treatment records that show subsequent to his separation from active duty he was treated for psychiatric problems.  

17.  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, UCMJ, and Part V, MCM [Manual for 
Courts-Martial].  Paragraph 3-18(1) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense. 

18.   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 is 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. 

19.  Paragraph 3-37b(1)(a) of the military justice regulation states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

20.  Army Regulation 600-8-22 (Military Awards) provides the Army’s awards policy.  Chapter 4 contains guidance on the AGCM.  Paragraph 4-8 contains guidance on disqualification for the AGCM.  It states individuals whose retention is not warranted or for whom a bar to reenlistment has been approved are not eligible for award of the AGCM.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DA Form 2627 in question should be removed from his record because it was unjust has been carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  The evidence of record confirms the applicant was AWOL from 3 through
29 January 1980 and there is insufficient evidence to suggest he was suffering from a medical condition that contributed to the commission of this offense.  Even if the applicant was suffering from some medical condition, he had the obligation to coordinate an extension of leave or medical absence through his chain of command.  There is no evidence of record indicating he ever requested or was denied medical leave.  Therefore, there is an insufficient evidentiary basis to support his claim for medical leave. 

3.  By regulation, 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 is 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. 

4.  The evidence of record confirms the applicant's Article 15 processing was accomplished in accordance with the applicable law and regulation, and that the imposing commander determined beyond a reasonable doubt that the applicant was guilty of the charged offense.  The evidence of record and independent evidence provided by the applicant is insufficient to call into question the validity of this decision of the imposing commander.  Further, the applicant accepted the Article 15 and elected not to appeal the punishment.  Therefore, absent any clear and convincing new evidence of a clear injustice, there is an insufficient evidentiary basis to support a set aside of the NJP action in question.  

5.  The governing regulation also requires that in order for the ABCMR to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record, there must be clear injustice and/or evidence that shows the document is untrue or unjust, in whole or in part.  There is no evidence of record or independent evidence provided by the applicant that satisfies this regulatory burden of proof.  Therefore, there is also an insufficient evidentiary basis to support removal of the Article 15 from the applicant's OMPF. 

6.  The applicant’s contentions that he was unjustly given a reprimand by a sergeant that resulted in him being disqualified from award of the AGCM, that this reprimand should be set aside, and that he should be awarded the AGCM has also been carefully considered.  However, there is no record of the applicant receiving a formal written reprimand from a sergeant.  His AGCM disqualification was clearly based on his AWOL offense as was his subsequent bar to reenlistment.  Therefore, there is also an insufficient evidentiary basis to support granting this portion of his request. 

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)                                         AR20100023153



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ABCMR Record of Proceedings (cont)                                         AR20100023153



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