IN THE CASE OF:	  

		BOARD DATE:	 26 May 2011 

		DOCKET NUMBER:  AR20100026243 


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 his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 22 August 1985; and his Summary Court Martial Order, dated 16 February 1988, be removed from his records.  He also requests that he be advanced on the Retired List to the pay grade of E-7.  

2.  The applicant states, in effect, that both punishments were unjust and the result of command influence.  He further states that he received Good Conduct Medals and a Meritorious Service Medal and he believes his service warrants advancement on the Retired List.  

3.  The applicant provides a two-page letter explaining his application.

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.  On 4 September 1970, the applicant was inducted into the Army of the U.S. and served until he was honorably released from active duty on 13 March 1972.  He enlisted in the Regular Army on 12 June 1972 and served through a series of continuous reenlistments.  He was promoted to pay grade E-7 on 26 December 1979.

3.  On 22 August 1985, nonjudicial punishment was imposed against the applicant for committing assault against a sergeant first class/E-7 with a knife, striking an E-7 with his fist, and for making a false statement under oath.  The applicant did not demand trial by court-martial and he did not appeal his punishment.

4.  On 16 February 1988, he was convicted by a summary court-martial, pursuant to his plea, of conspiring with a sergeant to produce a bill of sale for stereo equipment, failure to show the proper disposition of stereo equipment, and of making a false statement during an investigation.  He was reduced to the pay grade of E-6 on 17 February 1988.

5.  On 29 January 1991, the Department of the Army Suitability Evaluation Board denied the applicant’s petition to transfer the DA Form 2627, dated 22 August 1985, to the restricted portion of his official military personnel file (OMPF).

6.  On 31 March 1992, the applicant was honorably retired by reason of length of service and transferred to the Retired List in pay grade E-6 effective 1 April 1992.  He had served 21 years, 3 months, and 29 days of active service.

7.  Meanwhile, the applicant applied to this Board on 24 March 1992 requesting that his summary court-martial conviction be set aside.  The Board denied his request on 7 December 1994.

8.  On 10 March 2004, the Army Grade Determination Review Board (AGDRB) convened to determine if the applicant should be advanced on the Retired List to the pay grade of E-7.  In addition to his OMPF, that board also considered a statement from the applicant dated 23 November 2003 in which the applicant contended that his punishments were strictly command influenced and that the AGDRB should advance him on the Retired List.  The AGDRB consisting of three colonels unanimously determined that the highest grade he satisfactorily held was E-6.


9.  Army Regulation 27-10 (Military Justice), in effect at the time, states that the decision to file DA Forms 2627 on the performance or restricted fiche of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander is final and was to be indicated in item 5, DA Form 2627.   

10.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) serves as the authority for filing of documents in the OMPF.  It states, in pertinent part, that when there is an approved finding of guilty on at least one specification, the court-martial order will be filed on the performance fiche of the OMPF.  If all charges and specifications are dismissed or if all charges and approved findings are not guilty, the court-martial will be filed on the restricted fiche of the OMPF.

11.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides, in pertinent part, that the Board is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.  

12.  Title 10, U.S. Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held, as determined by the Secretary of the Army, upon completion 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired).

DISCUSSION AND CONCLUSIONS:

1.  It appears that the applicant's NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  The NJP was properly filed on the performance fiche of his OMPF, as directed by the imposing commander at the time punishment was imposed.

2.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations and the sentence was appropriate for the misconduct for which the applicant was convicted.

3.  The applicant was convicted pursuant to his pleas of guilty by a duly constituted summary court-martial and the record of that court-martial is properly filed in the applicant's OMPF in accordance with the applicable regulations.

4.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his repeated misconduct.  Accordingly, the records of his misconduct should remain a matter of record.

5.  Additionally, the applicant violated the trust and responsibility placed in him as a senior noncommissioned officer on at least two separate occasions.  Accordingly, his conduct in the pay grade of E-7 does not rise to the level of satisfactory service necessary to warrant advancement to the pay grade of E-7 on the Retired List.

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)                                         AR20100026243



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ABCMR Record of Proceedings (cont)                                         AR20100026243



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