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 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. 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
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20100027258
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2013 | 20130022350
This document shows that during a review of the applicant's file, the board considered his record of service, including performance and future potential for retention in the Army. The applicant provided a List of Documents, dated 1 August 1996, showing the board identified the NCOERs for the rating periods 9112-9206 and 9408-9507 and the DA Form 2627 dated 25 August 1995 as the basis for his bar to reenlistment. c. Paragraph 10-8 provides that a Soldier may appeal the bar to reenlistment...
ARMY | BCMR | CY2011 | 20110020953
The applicant requests correction of item 23 (Type of Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was retired from active duty by reason of physical disability. The DD Form 214 for this period indicates he completed 3 years of active military service. His military personnel record contains a U.S. Army Enlisted Records and Evaluation Center memorandum, dated 31 August 2000, Subject: Department of the Army (DA) Imposed Bar to Reenlistment...
ARMY | BCMR | CY2011 | 20110022149
The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed. It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). ABCMR Record of Proceedings (cont) AR20110022149 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record...
ARMY | BCMR | CY2001 | 2001061448C070421
In support of his application, he submits a supplemental letter, a copy of the Article 15, dated 24 March 2000, an Article 15 Punishment Worksheet, the contested NCOER, a memorandum of Appointment of Administrative Board, the Findings and Recommendations of the Administrative Separation Board, two appeals to the Article 15, a notice of denial of continued active duty service under the QMP, a List of QMP Documents, a Statement of Options, his QMP (DA Form 4941-R), his Developmental Counseling...
ARMY | BCMR | CY2014 | AR20140019460
It states that applications for removal of an Article 15 from the Official Military Personnel File (OMPF) based on an error or injustice will be made to the Army Board for Correction of Military Records (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. ABCMR Record of Proceedings (cont) AR20140019460 3 ARMY BOARD FOR CORRECTION OF MILITARY...
ARMY | BCMR | CY2003 | 2003087944C070212
In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice. The applicant requests...
ARMY | BCMR | CY2015 | 20150012451
The imposing commander directed the filing of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) in the performance section of the applicant's OMPF. NJP is "wholly set aside" when the commander who imposed the punishment, a successor in command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for...
ARMY | BCMR | CY2009 | 20090009391
The applicant requests removal of a DA Form 2627 [Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)], dated 29 July 1987, from his Official Military Personnel File (OMPF). On 18 March 1988, Army Regulation 27-10, at paragraph 3-37(b) of the regulation, states, in pertinent part, that for Soldiers E-4 and below who have been in the Army less than three years as of the date punishment is imposed, the original (DA Form 2627) will be filed locally in nonjudicial...
ARMY | BCMR | CY2012 | 20120015630
The applicant requests removal of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)), dated 25 February 2011, that is filed in the performance section of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File, and reinstatement of his rank. On 6 and 26 March 2012, his former station commander responded that promotion to SSG is conducted at the battalion level; he should discuss the matter with...
ARMY | BCMR | CY2011 | 20110005964
The applicant requests removal of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)) from his Official Military Personnel File (OMPF). On 10 April 2007, while the applicant was serving as a sergeant/E-5 (SGT/E-5) at Fort Eustis, Virginia, he was notified that his commander was considering whether he should be punished under Article 15 of the UCMJ for violating a lawful general regulation by wrongfully fraternizing with a lower enlisted Soldier. ...