IN THE CASE OF:	  

		BOARD DATE:  7 August 2012

		DOCKET NUMBER:  AR20110024503 


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 by setting aside the nonjudicial punishment (NJP) imposed under Article 15, Uniform Code of Military Justice (UCMJ), and restoration of his rank/pay grade.

2.  He states he received an Article 15 and was reduced from the rank/pay grade of staff sergeant (SSG)/E-6 to private (PVT)/E-1.  He believes the reduction to PVT/E-1 was too harsh.

3.  He provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 June 1982.

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.  He enlisted in the Regular Army on 7 June 1976 in the rank/pay grade of PVT/E-2.

3.  His record contains a DA Form 2-1 (Personnel Qualification Record – Part II) which shows he was advanced/promoted as follows:

* private first class/E-3 – 1 July 1977
* specialist four (SP4)/E-4 – 1 November 1977
* sergeant (SGT)/E-5 – 10 September 1979

4.  There is no indication in the available record he was ever promoted to the rank/pay grade of SSG/E-6 at any time during his career.

5.  His record contains a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) which indicates he received NJP on 18 December 1981 while serving in the rank/pay grade of SGT/E-5.  The rank/pay grade of the imposing commander was lieutenant colonel (LTC)/O-5.  His punishment included reduction to the rank/pay grade of SP4/E-4 and he did not submit an appeal.

6.  The applicant's record also shows he received NJP on 12 March 1982 for possession of marijuana.  He was reduced to the rank/pay grade of PVT/E-1.  The imposing commander was an officer in the rank/pay grade of LTC/O-5.  There is no indication the applicant submitted an appeal or that the punishment was set aside.

7.  He received counseling on numerous occasions between July 1981 and April 1982 for various infractions which included:

* failing to get haircuts
* breaking restriction 
* failing to follow instructions
* poor attitude
* fraternizing with lower enlisted personnel
* indebtedness

8.  On 6 May 1982, the applicant's commander informed him of his intent to separate him for unsuitability under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

9.  The applicant acknowledged receipt of the notification of his pending separation action and was advised by counsel of the basis for the contemplated action to separate him for unsuitability.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.

10.  He also indicated he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.  He further understood that in the event of the issuance of an undesirable discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws and might encounter substantial prejudice in civilian life.

11.  On 21 May 1982, his commander initiated elimination action against him under the provisions of paragraph 13-4c of Army Regulation 635-200 by reason of unsuitability.  He noted all rehabilitative efforts had flatly failed and the applicant received two NJP's as a result of his actions.

12.  The applicant was discharged on 7 June 1982 under the provisions of paragraph 13-4c of Army Regulation 635-200 by reason of unsuitability – apathy, defective attitude, or inability to expend effort constructively.  His DD Form 214 shows his rank/pay grade as PVT/E-1.  He completed a total of 6 years and 1 day of active service.  He was issued a General Discharge Certificate.

13.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.

	a.  Chapter 3 implements and amplifies proceedings under Article 15 of the UCMJ.  It states the basis for any set aside action is a determination that the punishment has resulted in a clear injustice under all of the circumstances of the case.  "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 also states setting aside and restoration are actions whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  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.

	c.  The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the punishment was too harsh and his NJP should be set aside.  He also states his pay grade should be restored.

2.  The evidence in this case suggests that both NJP's were 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's.

4.  The applicant accepted both NJP's and did not appeal either punishment he received under Article 15 of the UCMJ which was his right.  As a result, he was reduced to the rank/pay grade of SP4/E-4 and further reduced to PVT/E-1.

5.  The basis for any set aside action is a determination that the punishment has resulted in a clear injustice under all of the circumstances of the case.  In this case, his reduction in pay grade was within the regulatory limits of his commander and there is no evidence showing that either of the NJP's resulted in an injustice.

6.  In view of the foregoing, he is not entitled to 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)                                         AR20110024503



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ABCMR Record of Proceedings (cont)                                         AR20110024503



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