IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100027258 


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, correction of his military records to show he received an early retirement.  On a second application, he requests that DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) be removed from his military records.

2.  The applicant states, in effect, that his civil rights were violated.  He served more than 15 years and 8 months of active service and he was involuntarily discharged in 1989 due to a Department of the Army (DA) Bar to Reenlistment.  He contends that he is unemployable as a result of being 100 percent disabled due to a traumatic brain injury (TBI) and post traumatic stress disorder (PTSD).  He explains that prior to his discharge he was assaulted by five Italian nationals and beaten with beer and wine bottles and a beer mug.  He received five stitches to his face.

3.  The applicant provides a copy of DA Form 4941 (Statement of Option), dated 14 March 1989; and a German medical report, dated 10 February 1989.

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 16 April 1973, the applicant enlisted in the Regular Army (RA).  He completed his initial training and was awarded military occupational specialty (MOS) 13B (Field Artillery Crewman).  He attained the rank of specialist four, pay grade E-4, and was released from active duty on 22 April 1977.  He had completed 3 years, 11 months, and 7 days of creditable active duty service.

3.  On 27 September 1977, the applicant again enlisted in the RA, in the rank of specialist four.  He was subsequently assigned to the Federal Republic of Germany.

4.  On 10 June 1978, the applicant was promoted to sergeant, pay grade E-5.

5.  On 22 February 1979, the applicant accepted nonjudicial punishment (NJP) for dereliction of duty by failing to secure an automatic weapon.  The punishment included a forfeiture of $41.00 pay for 1 month and 7 days extra duty.  The applicant indicated on the DA Form 2627 that he did not demand trial by court-martial, that no spokesman would accompany him, and that he would present matters in defense and/or extenuation in person.  The form that the applicant signed clearly stated his legal rights as they pertained to an NJP.  He did not appeal the subsequent punishment rendered by the commander.  The NJP is filed in the performance section of his official military personnel file (OMPF).

6.  On 17 November 1980, the applicant was promoted to staff sergeant, pay grade E-6.

7.  The U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana, sent the applicant a memorandum, dated 20 January 1989, to inform him that a DA Bar had been imposed against him under the provisions of the Qualitative Management Program (QMP).  The specific reasons and/or documents used in making this determination were provided to the applicant in a separate sealed envelope.

8.  On 8 March 1989, the applicant's commander presented the DA Form 4941 to the applicant, whereupon he elected not to submit an appeal.


9.  The DA Form 4941 shows that on 14 March 1989 the applicant requested that he be discharged under the provisions of Army Regulation 635-200, paragraph 16-5, due to a DA Bar effective on 22 June 1989.

10.  On 10 April 1989, the applicant submitted a separate, written request for separation from the Army on 22 June 1989, due to receiving a DA Bar to reenlistment.  His request was approved by the appropriate authority on 12 April 1989.  The applicant was to be returned to the United States for discharge on or about 22 June 1989.

11.  On 21 June 1989, the applicant was honorably discharged in the rank of staff sergeant, pay grade E-6.  He had completed a total of 15 years, 8 months, and 
2 days of creditable active duty service.

12.  Army Regulation 27-10 (Military Justice):

	a.  This regulation prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  It states that the basis for any set aside action is a determination that under all of the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear Injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.

	b.  This regulation provides that in regard to NJP, Soldiers will be advised of their right to consult with counsel and the location of counsel.  For the purpose of NJP, counsel means a judge advocate, a Department of the Army civilian attorney or an officer who is a member of the bar of a Federal court or of the highest court of a State.  In regard to civilian counsel related to trial by courts-martial, it provides that the accused has the right to be represented in his or her defense before a general or special court-martial or at an investigation under Article 32, UCMJ, by civilian counsel, if provided by the accused at no expense to the government.

	c.  This regulation states that the decision to file the original DA Form 2627 in the performance or restricted section of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final.

13.  Military Personnel Message Number 93-164, announced the first temporary early retirement authority (TERA), which was effective in fiscal year 1993.  This message prescribed the eligibility requirements and application procedures for early retirement for RA enlisted Soldiers.

   a.  Early retirement was not an entitlement and was only offered to Soldiers who met the strict eligibility requirements.
   
	b.  TERA was used to retire members whose skills were excess to the Army's short and long term needs.

	c.  Enlisted personnel who were already separated under provisions of any other voluntary or involuntary separation program were not eligible for an early retirement.

	d.  Enlisted personnel must have been on active duty in the RA and met all eligibility requirements for retirement for length of service for a 20-year retirement as prescribed in Army Regulation 635-200, chapter 12, except as modified by this message.

	e.  Enlisted personnel must, without exception, have held one of the qualifying military occupational specialties listed in the message and have served the designated minimum number of active duty years.  MOS 13B was not a qualifying MOS.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military records should be corrected to show he received an early retirement.  He also requests that his NJP be removed from his military records.

2.  The evidence in this case suggests that the NJP was properly imposed against the applicant 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 suggests that he was afforded due process in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting the NJP.

4.  The applicant accepted the NJP in lieu of demanding trial by court-martial and furthermore, did not appeal the punishment to a higher authority.

5.  The applicant has provided no documentary evidence or convincing argument in support of his contention that the NJP should be removed from his military records.  Therefore, his request to remove the NJP should be denied.


6.  The evidence of record clearly shows the applicant was discharged on 
21 June 1989, as a result of a DA Bar.

7.  In 1993, the TERA was first authorized as a means of providing an early retirement to Soldiers whose skills were in excess to the Army's short and long term needs.  Enlisted personnel who were previously separated under provisions of any other voluntary or involuntary separation programs were not eligible for an early retirement.  Accordingly, the applicant's request for retirement should be denied.

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)                                         AR20100027258



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ABCMR Record of Proceedings (cont)                                         AR20100027258



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