IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110010594 


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 correction of his military records to show his rank as sergeant first class (SFC), pay grade E-7, at the time of discharge.

2.  The applicant states his military career was ended as result of an unjust court-martial action, due to an SFC with a racist attitude.

3.  The applicant provides no additional documentation.

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 14 July 1969, the applicant enlisted in the Regular Army and was sent to Fort Leonard Wood, Missouri.  He completed basic combat training and was assigned to Fort Bliss, Texas for advanced individual training.
3.  On 9 January 1970, the applicant was enrolled as a student in the Air Defense Artillery School.

4.  On 27 January 1970, the applicant was advanced to private first class, pay grade E-3.

5.  On 18 May 1970, he was reassigned as a duty Soldier.

6.  On 20 June 1970, the applicant departed Fort Bliss and arrived at Fort Leonard Wood for training in military occupational specialty (MOS) 63C (Tracked Vehicle Mechanic).

7.  On 25 July 1970, the applicant accepted nonjudicial punishment (NJP) for missing bed check and willfully disobeying a lawful order to get a haircut.  He was reduced to private, pay grade E-2.

8.  On 7 August 1970, the applicant was awarded MOS 63B (Wheeled Vehicle Mechanic) and subsequently assigned to Fort Knox, Kentucky.

9.  On 11 September 1970, the applicant departed Fort Knox for duty in the Federal Republic of Germany (FRG).

	a.  On 12 October 1970, he was assigned to the 1st Maintenance Battalion, U.S. Army Combat Equipment Group, Europe (CEGE).

	b.  On 31 December 1970, he was advanced to specialist four, pay grade E-4.

	c.  On 30 March 1971, the applicant was convicted by a summary court-martial of violating Article 91, Uniform Code of Military Justice (UCMJ) of the two specifications listed below.  The sentence was a forfeiture of $35.00 pay.

* Specification 1:  willfully disobeying a lawful order
* Specification 2:  being disrespectful in language towards a noncommissioned officer

	d.  On 27 August 1971, the applicant was informed by his commander of his intent to impose NJP on him for violation of Article 86, UCMJ, for failing to go to his appointed place of duty on 25 and 26 August 1971.

	e.  On 31 August 1971, the applicant informed his commander that he desired to consult with a judge advocate and demanded trial by court-martial.

10.  Special Court-Martial Order Number 3, U.S. Army CEGE, dated 10 January 1972, shows the applicant was charged with the following offenses:

	a.  Charge I: Violation of Article 86, UCMJ:

* Specification 1:  25 August 1971 - failed to go to appointed place of duty
* Specification 2:  26 August 1971 - failed to go to appointed place of duty
* Specification 3:  1 September 1971 - failed to go to appointed place of duty

	b.  Charge II: Violation of Article 92, UCMJ:

* Specification 1:  30 August 1971 - dereliction of duty by sleeping on duty

	c.  Additional Charge I:  Violation of Article 86, UCMJ):

* Specification 1:  7 September 1971 - failed to go to appointed place of duty
* Specification 2:  8 September 1971 - failed to go to appointed place of duty
* Specification 3:  9 September 1971 - failed to go to appointed place of duty

	d.  Additional Charge III:  Violation of Article 92, UCMJ:

* Specification 1:  23 August 1971 - dereliction of duty by failing to clean the latrine

	e.  Additional Charge IV:  Violation of Article 86, UCMJ:

* Specification 1:  4 October 1971 - failed to go to appointed place of duty
* Specification 1:  5 October 1971 - failed to go to appointed place of duty
* Specification 1:  6 October 1971 - failed to go to appointed place of duty
* Specification 1:  7 October 1971 - failed to go to appointed place of duty


11.  The applicant pled not guilty to all charges and specifications.  On 
4 November 1971, he was convicted of:

	a.  Specification of Charge II and Charge II;

	b.  Specifications 2 and 3 of Additional Charge I and Additional Charge I;

	c.  Specification of Additional Charge III and Additional Charge III; and

	d.  all Specifications of Additional Charge IV and Additional Charge IV.

12.  The applicant was sentenced to a forfeiture of $85.00 pay for 4 months and confinement at hard labor for 4 months.

13.  On 4 November 1971, the applicant was reduced to the rank of private, pay grade E-1, and subsequently confined at the U.S. Army Confinement Facility Mannheim.

14.  On 10 January 1972, the convening authority approved the sentence.

15.  On or about 18 March 1972, the applicant was assigned as a patient to the U.S. Army General Hospital at Landstuhl, FRG.  He was subsequently reassigned to the U.S. Army Hospital located at Fort Gordon, Georgia.

16.  On 10 May 1972, the applicant was advanced to private, pay grade E-2.

17.  On 26 May 1972, a Physical Evaluation Board (PEB) convened to consider the applicant's medical condition.  The PEB diagnosed the applicant with a schizophrenic reaction, paranoid type, with a slight impairment for social and industrial adaptability.  He was rated at 10 percent disabled and found to be unfit for duty.  The PEB recommended separation with severance pay.  The applicant concurred.

18.  On 22 June 1972, the applicant was discharged.  His rank at the time was private, pay grade E-2.  He had completed 2 years, 6 months, and 25 days of creditable active duty service, and he had 135 days of lost time.

19.  The Manual for Courts-Martial, in effect at the time, provided in chapter XXV, paragraph 126e, that under the provisions of Article 58a, a court-martial sentence of an enlisted member in a pay grade above E-1, as approved by the convening authority, that includes confinement, reduces that member to pay grade E-1, effective on the date of that approval. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his rank as sergeant first class (SFC), pay grade E-7 at the time of discharge because an SFC with a racist attitude caused him to be unjustly court-martialed.

2.  The evidence of record clearly shows the highest rank the applicant attained was specialist four, pay grade E-4, and that he demanded trial by court-martial in lieu of NJP.  His demand for a trial resulted in him being convicted by a special court-martial of a series of offenses that occurred between August and October 1971.

3.  The evidence further shows the applicant was properly reduced to private, pay grade E-1 upon approval of the convening authority.  He was subsequently advanced to pay grade E-2 after he was released from confinement and prior to discharge.  There is no evidence showing he had been advanced or promoted to any pay grade higher than E-2 after his release from confinement.

4.  The applicant has not provided any documentary evidence or convincing argument showing that he was unjustly court-martialed, or that he was racially discriminated against.

5.  In view of the above, the applicant's request 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)                                         AR20110010594



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ABCMR Record of Proceedings (cont)                                         AR20110010594



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