BOARD DATE: 3 May 2011
DOCKET NUMBER: AR20100026028
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 the removal of two records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), from his Official Military Personnel File (OMPF).
2. The applicant states that the word "Negro" is at the top of both of the
Article 15's. Additionally, the last digit of his social security number (SSN) is wrong on one of the Article 15's. He further states that they used the word "Negro" to describe him and it demonstrates how they treated him.
3. The applicant provides a copy of the two NJP actions administered on
26 March 1975 and 2 September 1975.
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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 26 July 1974 for a period of 6 years. He was discharged from the USAR DEP on 5 August 1974 and he enlisted in the Regular Army on
6 August 1974. Item 1 ((Service Number/SSN) of his DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows the entry xxx-xx-xxx9. He completed training and he was awarded military occupational specialty (MOS) 76P (Stock Control and Accounting Specialist).
3. On 26 March 1975, the applicant accepted NJP for failing to go at the time prescribed to his appointed place of duty. He was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP. He did not demand trial by court-martial. His punishment imposed was 14 days of extra duty. He did not appeal the punishment. The SSN listed on this NJP shows the entry xxx-xx-xxx4. This form also shows the words "Negro" and
"10 years ed." typed on the upper right corner.
4. On 2 September 1975, he accepted NJP for falling asleep while on guard duty. He was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP. He did not demand trial by court-martial. His punishment imposed was 14 days of extra duty. He did not appeal the punishment. This form shows his correct SSN and the word "Negro" handwritten on the upper right corner.
5. Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides that all personnel information recorded under the authority of this regulation is the property of the United States Government. Once recorded, it will not be removed except as provided by law or this regulation. Types of authorized military personnel files are the OMPF, Military Personnel Records Jacket (MPRJ), Career Management Individual File (CMIF), and the Classified Personnel Record (CPR). Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from a section or moved to another part of the OPMF unless directed by one of several entities, including the ABCMR.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the two NJPs should be removed from his OMPF because one has the wrong SSN and both have the term "Negro" annotated on the top. He also states that they used the word "Negro" to describe him and it demonstrates how they treated him.
2. The evidence in this case shows the NJPs were properly administered in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized his rights.
3. The evidence also shows that he was afforded due process in that he was afforded the opportunity to consult with counsel, bring a spokesman, present matters in defense or extenuation, and to elect trial by court-martial in lieu of accepting the NJP. He elected not to demand trial by court-martial on both occasions. He did not appeal the punishment imposed in either case.
4. There is no evidence of error or injustice. There was one minor typographical error of the last digit of his SSN on one of the NJP's. The term "Negro" that was added at the top of the two forms appears to have been used for demographic or statistical purposes by his unit at the time.
5. The applicant carries the burden of proof to show that the NJPs were in error or unjust. He provided no evidence to support his claims. Since the NJP is facially valid, administrative regularity is presumed.
6. In view of the above, there is no basis for granting the applicant's 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) AR20100016512
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