IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110001502 


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:

	a.  removal of two records of nonjudicial punishment (NJP), dated 23 May 1957 and 24 June 1958, from the DA Form 201 (Military Personnel Records Jacket (MPRJ)) of his late father, a former service member (FSM);

	b.  the FSM's posthumous promotion to colonel (COL);

	c.  copies of the two investigating officer's (IO) reports; and

	d.  identification of his father's accuser.

2.  The applicant states that all the charges were trivial, including the Article 15's in the FSM's MPRJ.  They destroyed his father's career and probable promotion to colonel.  After researching his father's Army service, he was impressed by his service records; letters of commendation; and his father's knowledge, abilities, and performance as an ordnance officer.  His father's service starting at the beginning of the Battle of the Bulge and lasting through the end of the war was most creditable.  However, he was shocked by the petty accusations and findings concerning the Article 15's contained in his MPRJ in the closing year of his most distinguished career.

3.  The applicant also states he found neither the reports of the IO as required by Article 32 of the Uniform Code of Military Justice (UCMJ) nor where his father was advised of his right to the assistance of a Judge Advocate Generals' Corps officer to advise and assist him.  His father evidently did not get the opportunity to face the party making the accusations.

4.  The applicant further states the NJP, dated 23 May 1957, mentioned a "block and tackle set and a Williams socket wrench" duly signed out by the FSM and reported as missing from his previous post assignment at Watertown Arsenal.  These items were inadvertently shipped from one Army post to another.  The items never left the Government's control, were not stolen or lost, and were returned to Watertown Arsenal.  These are certainly trivial offenses and because of their value would have been considered expendable.

5.  The applicant also states the NJP, dated 17 May 1959, stated, "an investigation by Headquarters Ordnance Ammunition Command" charged his father with operating a "business venture for profit, utilizing Government facilities."  This allegation is without merit.  His father had a small greenhouse near their quarter's garage where he kept his orchids.  That was a hobby and not a business.  The business, which was the enterprise of his brother and himself, was where they grew vegetables for a summer project hoping to sell the excess for spending money.  They also used their father's lawnmower and mowed lawns in the civilian community to earn spending money.  They concocted the name "Scotts Greenhouses" to appear business-like to their customers.

6.  The applicant further states that the offense for which their father was punished was that his sons were industrious enough to work for spending money.  The IO never interviewed them or viewed the facilities of the alleged business.  If there was a thoroughly conducted investigation, there would not have been charges.  The operation of the vehicle was done entirely on post property to lead and haul a small amount of topsoil to their quarters to use in improving the lawn and flower garden.

7.  In addition, $26.00 in personal long distance calls were erroneously charged as official calls.  Upon discovery, his father promptly paid for the calls and instigated new policies to insure proper logging in the future.  The applicant questions why an officer with his father's outstanding service should be so severely punished for the industriousness of his sons.

8.  His father's responses to the charges were brief and did not challenge the findings as they should have.  He is disappointed that the Army did not conduct a thorough investigation, but rather let his father's career deteriorate.  Although some of the facts are not in dispute, the pettiness of the charges and the following punishments were extremely severe.  Particular attention is called to the efficiency reports following the Article 15's.

9.  Finally, it was not an easy task for this father to perform such outstanding service and dedication to the U.S. Army while rearing eight children.  They think their father did an outstanding job being a good father and ordnance officer.  Three of his father's sons served in the Army.

10.  He found provisions for remedies of this injustice in Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) and in Army Regulation 27-10 (Military Justice), paragraph 3-43.  Any corrections made at this late date will not help his father's career, but would definitely have significant meaning to his eight children.  It is time to right the wrong for a great military officer and father.

11.  The applicant provides:

* NJP, dated 23 May 1957, and his father's response
* DA Forms 67-4 (Officer Efficiency Report (OER)) for the periods ending 30 April 1957 and 30 April 1958
* NJP, dated 24 June 1958, and his father's response
* DA Forms 67-4 for the periods ending 14 July 1958, 23 October 1958, and 25 August 1959
* commendation letter, dated 25 August 1959
* reverse of DA Form 638 (Recommendation for Award), dated 13 July 1960
* his birth certificate
* FSM's death certificate
* FSM's gravesite locator

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 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 FSM's military records show he was appointed as a captain in the Army of the United States on 1 February 1942 with prior commissioned U.S. Army Reserve (USAR) service.  He was promoted to lieutenant colonel (LTC), USAR, on 10 May 1944.  He was appointed in the Regular Army as an LTC on 19 June 1947.

3.  On 23 May 1957, NJP under Article 15, UCMJ, was imposed against the FSM after it was reported that he was using the property of the U.S. Government, a block and tackle set and a Williams socket wrench, for his own private use between 12 May and 17 June 1955 as the items remained in his possession until 7 November 1956 when they were discovered by IO's of the U.S. Army Ordnance Works.  The FSM was advised of his rights and the opportunity to submit any matter in mitigation, extenuation, or defense.

4.  On 1 June 1957, the FSM acknowledged receipt of the NJP, did not elect a trial by court-martial, and requested consideration of the following factors:

	a.  The block and tackle set were inadvertently included in his shipment of household goods by an oversight.

	b.  The possession of the Williams socket wrench was unknown to him until found by the investigation when a survey was made at Holston Ordnance Works. 
How it came into his possession was not known.

	c.  The band saw referred to was one that was excess to the needs of Watertown Arsenal and it was in such condition as to preclude its use in the shops.  It had been found on the post by another officer and partially restored to operating condition.  Sometime after that officer was transferred from Watertown Arsenal, it came into his possession.  Unaware it was part of the inventory of Watertown Arsenal, he did not formally turn it in upon his departure from that post.

	d.  It was the policy of the Ordnance Corps to encourage ordnance officers to develop their skill in the use of machine tools.  The policy at Watertown Arsenal permitted the use of Government equipment for training in the use of machine tools and for recreation purposes when the equipment was not needed for arsenal activities.

	e.  The work shop in question was a room in his quarters.  The shop was operated by him for recreational purposes only and did much to increase his skill in operating machine tools.

5.  On 6 June 1957, the FSM's commander advised the FSM of a forfeiture of $100.00 pay and a reprimand for his misappropriation of items of Government property over a considerable period of time.  The FSM was also advised of his right to appeal in accordance with the Manual for Courts-Martial, paragraph 134, dated 1951.

6.  On 10 June 1957, the FSM was issued an annual OER for the period 1 August 1956 through 30 April 1957.  He received "excellent" and "superior" ratings for his duties.  He was rated "Should give a superior performance when promoted to the next higher grade" and "A superior officer of great value to the service" by his rater and indorser.

7.  On 20 June 1957, the FSM submitted a personal check in the sum of $100.00 and stated that no appeal was desired.

8.  On 6 June 1958, the FSM was issued an annual OER for the period 1 May 1957 through 30 April 1958.  He received "superior" and two "outstanding" ratings for his duties.  He was rated "Should give a superior performance when promoted to the next higher grade" and "A superior officer of great value to the service" by his rater and indorser.

9.  On 24 June 1958, NJP under Article 15, UCMJ, was imposed against the FSM after an investigation by the headquarters had disclosed the following:

	a.  He had entered into a business venture known as "Scott Greenhouses" for his personal profit utilizing Government facilities and land at Holston Ordnance Works.

	b.  He utilized Government telephone facilities in placing personal long distance telephone calls, those calls being completed as official tolls calls and paid for the U.S. Government.

	c.  He permitted a member of his family (son) to drive a Government vehicle, contrary to Government regulations on or about 2 March 1958.

10.  The NJP also advised the FSM of his rights and the opportunity to submit any matter in mitigation, extenuation, or defense.

11.  On 7 July 1958, the FSM acknowledged receipt of the NJP, did not elect a trial in lieu of action under Article 15, and stated the following:

	a.  The business venture was actually conceived and operated by his sons under his guidance.  All profits received were retained by them for their personal use.  The venture did not originate as a business proposition, but in its initial stages represented the interest of his sons in horticultural pursuits.  The Government land involved consisted only of the regular quarters and land area customarily assigned to the officers' quarters at the installation.

	b.  When his attention was called to the incorrect charging of personal telephone calls, he had a review made of all toll tickets charged as official for calls he made since reporting to Holston Ordnance Works.  By checking the place and number called, all tickets not judged to be official were withdrawn.

	c.  The offense of permitting a vehicle to be operated by a driver who had no Government driver's license was committed.  The vehicle was, however, being driven for an official purpose, was not being used for personal benefit, and was entrusted to a duly-qualified and state-licensed driver.

12.  On 17 July 1958, NJP under Article 15, UCMJ, was imposed against the FSM for the following actions:

	a.  permitting his sons to utilize the area immediately adjacent to his Government quarters in a business venture which involved growing and selling flowers and plants;

	b.  permitting personal long distance telephone calls to be placed and charged as official business contrary to regulations; and

	c.  permitting his son to drive a Government vehicle under circumstances which were specifically contrary to regulations.

13.  The NJP stated the actions cited here, in addition to those for which he was officially reprimanded in June 1957 by the Commanding General, 3rd U.S. Army, would be taken into consideration in connection with future personnel actions related to him.  He was also advised of his right to appeal.

14.  In a memorandum, dated 30 July 1958, in reference to the basic communication received on 22 July 1958, the FSM elected not to appeal.

15.  On 14 August 1958, the FSM's commander directed filing the NJP in the FSM's MPRJ.

16.  On 9 September 1958, the FSM was issued a permanent change of station (PCS) OER for the period 1 May 1958 through 14 July 1958.  He received "excellent" and "superior" ratings for his duties.  He was rated "Should give a superior performance when promoted to the next higher grade" by his rater and "Should give a very satisfactory performance when promoted to the next higher grade" by his indorser.  His indorser commented, "Due in part to his personality and in part to poor judgment in his personal actions, he had not been able to retain his staff's complete loyalty and respect.  He was better suited for subordinate positions than command."

17.  On 25 October 1958, the FSM was issued a change-of-rater OER for the period 15 July 1958 through 23 October 1958.  He received "superior" and "excellent" ratings for his duties.  He was rated "Should give an outstanding performance when promoted to the next higher grade" by his rater.

18.  On 25 August 1959, the FSM was issued a PCS OER for the period 1 May 1958 through 25 August 1959.  He received "superior" and "outstanding" ratings for his duties.  He was rated "Should give an outstanding performance when promoted to the next higher grade" by his rater and "Should give a superior performance when promoted to the next higher grade" by his indorser.  His rater commented, "He believed the FSM should be considered for and given a promotion prior to retirement."  His indorser commented, "The FSM's value to the service was such that he should be promoted to the grade of COL."

19.  On 25 August 1959, the FSM was issued a letter of commendation attesting to his work as the Chief of Materiel, U.S. Army Ordnance Section, upon completion of his tour of duty in Korea.

20.  On 6 May 1960, the FSM requested voluntary retirement based on completion of over 20 years of active Federal service.  His request was approved on 13 July 1960.

21.  He was honorably retired in the rank of LTC on 31 July 1960.  He was credited with completion of 27 years, 2 months, and 2 days of total creditable service for retired pay.

22.  There is no evidence the FSM was recommended for promotion to COL prior to his discharge.

23.  Army Regulation 27-10 was first published in November 1968; therefore, the Board will refer to the UCMJ.  Article 15 of the UCMJ (1951 edition) set forth the procedures and rights of the officer for NJP.  The procedures authorized a commander to initiate Article 15 proceedings for minor offenses, generally considered those not involving moral turpitude or offenses for which less than 1 year of confinement was authorized.

24.  Article 15 of the UCMJ (1951 edition) provided for notification of a commander's intent to impose NJP in a letter format set forth in appendix 3.  The procedures authorized the officer to accept the Article 15 proceedings and present matters in defense, mitigation, and extenuation.  In the alternative, the officer could demand trial by court-martial.  It also provided that a commander had the power to set aside punishment.  Such action could only be taken in the case of clear injustice (e.g., as when there was doubt concerning the accused's guilt.)

25.  Army Regulation 27-10, dated 26 November 1968, as well as the current version, prescribes the policies and procedures pertaining to the administration of military justice.  Paragraph 3-43 contains guidance for the transfer or removal of records of NJP from the official military personnel file (OMPF).  It states that application for removal of NJP from a Soldier's OMPF based on an error or injustice will be made to the ABCMR.  It further states there must be compelling evidence to support the removal of a properly-completed NJP from a Soldier's record by the ABCMR.

26.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, MPRJ, career management individual file, and Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in this regulation.

DISCUSSION AND CONCLUSIONS:

1.  With regard to removal of two NJP's from the FSM's MPRJ, the evidence shows:

	a.  The FSM accepted NJP on 23 May 1957 for receiving and obtaining Government property for his own private use.  He elected not to appeal the punishment and submitted mitigating factors for consideration.  He was reprimanded on 6 June 1957 for misappropriation of Government property and ordered to pay $100.00.  The FSM submitted payment of $100.00 on 20 June 1957.

	b.  On 24 June 1958, he accepted NJP for entering into a business venture for his own personal profit utilizing Government facilities and land.  On 7 July 1958, he acknowledged receipt of the NJP, did not elect trial in lieu of action under Article 15, and submitted matters in mitigation.  On 17 July 1958, the FSM again accepted NJP in addition to his June 1957 reprimand for permitting his sons to venture into a personal business utilizing Government property and defrauding the Government.  Again, the FSM elected not to appeal.

2.  Notwithstanding the passage of time, the evidence of record does not show and the applicant has not provided convincing evidence that the two NJP's are untrue or unjust, in whole or in part, to support their removal from his late father's records.  The contested NJP's appear to represent fair, objective, and valid punishments for offenses that occurred during the period in question.  By law, there must be compelling evidence to support removal of a properly-completed, facially-valid NJP from a Soldier's record.  Absent any evidence meeting this standard, there is an insufficient evidentiary basis to support removing these documents from the FSM's records.

3.  In view of the facts of this case, it appears the FSM's evaluations contained in the submitted OER's rendered prior to and after the NJP's represent the considered opinions and objective judgment of the rating officials at the time of their preparation.

4.  With regard to the applicant's request for identification of his father's accuser, the evidence also shows the FSM was reprimanded as a result of investigations by his command.  By his acknowledgement of these reprimands and elections not to appeal, it appears the FSM believed the outcome of the investigations to be correct and not in violation of his rights.  The FSM was provided an opportunity to present matters in mitigation and defense of the allegations.

5.  With regard to the FSM's posthumous promotion to COL, there is no evidence of record and the applicant has provided no evidence to show his father was unjustly denied promotion to COL as a result of the NJP actions.  The evidence of record does not show the FSM was recommended for promotion to COL by appropriate authority prior to his retirement.  At that time as well as in the current Army, promotion to COL was and is very competitive.  Promotion is not automatic.  To qualify for a posthumous promotion, an officer must have been officially recommended or approved for promotion by the promotion authority but unable to accept the promotion because of death in the line of duty.  That is not the case; therefore, the FSM is not entitled to posthumous promotion to COL.

6.  In regard to the applicant's contention that the Article 15's destroyed his father's probable promotion to COL, the FSM was promoted to LTC in May 1944. He entered on active duty as an LTC in June 1947.  The first Article 15 was imposed in 1957.  It is unlikely that his failure to be promoted to COL was due solely to the Article 15's and more likely was due to the highly-competitive nature of promotion to COL during the period between the Korean War and the start of the Vietnam War.

7.  With regard to providing the applicant with copies of the two IO's reports, a review of the FSM's MPRJ failed to reveal any investigating reports.  There is no substantive evidence of record and the applicant has provided none to show these investigations were incorrect, inaccurate, or unjust.   The applicant has submitted neither probative evidence nor a convincing argument in support of his request and his late father's record contains no evidence which indicates his rights were violated or that information was fabricated.

8.  The ABCMR is not an investigative body and the presumption of regularity is implied.  It is particularly appropriate here because the ABCMR is unable to obtain those records due to the passage of time.  The available evidence shows the FSM accepted the Article 15 which was the result of an investigation.

9.  In view of the foregoing, there is no basis for granting the 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 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)                                         AR20110001502



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110001502



10


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1