BOARD DATE: 8 December 2011
DOCKET NUMBER: AR20110011961
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, the removal of a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his official records.
2. The applicant states that an injustice was committed when nonjudicial punishment (NJP) was imposed against him on 2 September 1973. He goes on to state that he believes he was unfairly induced into accepting NJP by his acting commander. The record of NJP does not accurately describe the incident; however, it was probably the easiest way to resolve the issue.
3. The applicant provides a partial copy of the DA Form 2627-1.
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. The applicant enlisted in the Regular Army on 13 July 1971 for a period of 3 years and training as an ammunition storage specialist. He completed basic training at Fort Jackson, South Carolina and advanced individual training at Redstone Arsenal, Alabama before being transferred to Fort Hood, Texas for his first duty assignment.
3. On 31 January 1973, while serving in the pay grade of E-4, NJP was imposed against him for being absent without leave (AWOL) from 23 January to
30 January 1973.
4. On 31 May 1973, he was transferred to Korea for assignment to the 55th Ordnance Company at Camp Howard as a senior ammo storage specialist.
5. On 13 September 1973, NJP was imposed against the applicant for interfering with a military policeman (MP) in the performance of his duties and disobeying a lawful order from a MP in the performance of his duties. His punishment consisted of a forfeiture of $75 pay, 14 days of restriction and extra duty (suspended for 60 days). The applicant did not demand trial by court-martial and did not appeal the punishment.
6. On 2 June 1974, he departed Korea and was transferred to Oakland Army Base, California where he was honorably released from active duty on 3 June 1974 as an overseas returnee.
7. Army Regulation 27-10 prescribes the guidelines for the imposition of NJP. It states, in pertinent part, that the commander of an alleged offender must ensure that the matter is promptly and adequately investigated. The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident. The investigation should cover whether an offense was committed, whether the Soldier was involved and the character and military record of the Soldier. If after the preliminary inquiry, the commander determines, based on the evidence currently available, that the Soldier has probably committed an offense and that a NJP procedure is appropriate, the commander should take the necessary action.
8. Army Regulation 27-10 also provides, in pertinent part, that in regards to NJP, the Soldier 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.
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 punishment was not disproportionate to the offense and there is no evidence of any violations of the applicants rights.
2. The applicants contention that an injustice was committed when an NJP was imposed against him has been noted. However, he has failed to show through the evidence submitted with his application or the evidence of record that such was the case.
3. The applicant was afforded the opportunity to demand trial by court-martial and he elected not to do so. Additionally, he did not elect to appeal his punishment to the battalion commander.
4. Accordingly, in the absence of such evidence, there appears to be no basis to grant his request.
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.
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