IN THE CASE OF:	  

		BOARD DATE:	    5 January 2012

		DOCKET NUMBER:  AR20110013514 


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 record of DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) from his official records, that the punishment be set aside, and that his rank be restored.  

2.  The applicant states, in effect, that he received nonjudicial punishment (NJP) for something that he did not do.  He lost his rank just a couple of days before he got out of the Army and he felt that he lost his integrity as well.  He continues by stating that he should never have received the NJP and it should be removed from his records and his rank restored. 

3.  The applicant provides a one-page letter explaining the circumstances surrounding the NJP.

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.  The applicant enlisted in the Regular Army on 21 March 1986 for a period of 3 years, training as a military policeman, and assignment to Germany.  He completed his one-station unit training at Fort McClellan, Alabama and was transferred to Germany on 8 August 1986.  He was advanced to the pay grade of E-4 on 1 May 1988.

3.  The record of NJP in question is not present in the applicant’s official records; however, his records show he was reduced to the pay grade of E-3 on 6 March 1989.

4.  He departed Germany on 16 March 1989 and was transferred to Fort Jackson, South Carolina where he was honorably released from active duty (REFRAD) in the pay grade of E-3 on 17 March 1989 due to the expiration of his term of service (ETS).  He had served 2 years, 11 months, and 27 days of active service.  

5.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, of the Uniform Code of Military Justice (UCMJ).  Paragraph 3-16d(4) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  

6.  Paragraph 3-18 of the military justice regulation contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates the Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  In addition, it states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, to an open hearing, and to examine available evidence.  

7.  Paragraph 3-28 of the military justice regulation provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant  that the Article 15 should be set aside and that the DA Form 2627 should be removed from his record and his rank restored were carefully considered.  However, there is insufficient evidence to support granting the requested relief.  

2.  Since the records do not contain the NJP in question and the applicant has not provided a copy of the NJP, there appears to be no basis to address the issue of removing the NJP from his records.

3.  Additionally, since the record of NJP is not available, it would be inappropriate for the Board to make a judgment on a record that cannot be reviewed, especially 22 years after the fact.  Accordingly, there appears to be no basis to set aside the punishment and restore his rank.

4.  It is also noted that if the applicant did not commit the offense for which he was charged as he claims, he had the option to demand trial by court-martial.  However, by his own admission, he accepted adjudication of the charges  pending against him by Article 15. 

5.  By regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  Based on the applicant’s statement it appears that the applicant's commander found him guilty of the alleged misconduct. 

6.  The Article 15 regulatory standard further requires the commander to be convinced beyond a reasonable doubt before he found the applicant committed the offense, which is the same high standard required of court-martial panels and judges sitting alone as triers of fact prior to entering findings of guilt.

7.  Notwithstanding the applicant's overall satisfactory record of service, he has submitted no evidence to clearly nullify the Article 15 proceedings conducted on the applicant, and does not show clear and convincing evidence that the applicant did not commit the alleged misconduct.  Accordingly, 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:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.



      _______ _   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)                                         AR20110013514





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ABCMR Record of Proceedings (cont)                                         AR20110013514



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