IN THE CASE OF:	  

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120000176 


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, removal of a DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)).  He also requests the award of his first Army Good Conduct Medal.

2.  The applicant states he was given an Article 15 without his knowledge at the time and had no opportunity to rebut the charge made by Major F___, a visiting officer to the detachment in La Paz, Bolivia.  The major scheduled a meeting and each participant was supposed to be notified of the meeting.  However, he was not personally notified of any such meeting and therefore did not attend.

3.  At the time of his discharge he requested the Army Good Conduct Medal and was informed that he would not receive one because of an Article 15 regarding the meeting with Major F___.  He feels this action was totally unjustified.

4.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 25 February 1963 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 72B (Communications Center Specialist).

3.  He was assigned to Communications Detachment 1 in La Paz, Bolivia, on 6 February 1964.  He was reassigned to the Strategic Communications (STRATCOM) Facility, La Paz, Bolivia, on 1 February 1965.  He was assigned as the communications supervisor on 30 April 1965.  On 30 June 1965, he was promoted to sergeant/pay grade E-5.

4.  A DA Form 2627-1, dated 4 January 1966, shows he was notified of his commander's intent to impose nonjudicial punishment (NJP) for failure to attend the facility commander's meeting as ordered.

	a.  The applicant acknowledged receipt of the notification on 4 January 1966. 
He did not demand trial by court-martial and he did not submit matters in extenuation, mitigation, or defense.

	b.  On 5 January 1966, his commander imposed NJP in the form of forfeiture of $50.00 and 14 days of extra duty.

	c.  On 5 January 1966, he appealed his NJP.  He felt it was excessive for his offense.  There were two meetings scheduled for 4 January 1966 and he admittedly did not attend the morning session.  He asked his supervisor if he would cover the communications center while he attended the afternoon session. 
He received a negative reply from his supervisor.  He realized he did not comply with his commanding officer's directive, but he did make an effort to alleviate his predicament and requested this be taken into consideration upon review of the NJP.

	d.  His commander submitted a statement with his appeal.  The commander stated the meeting on 4 January 1966 was held in two identical sessions in order to avoid conflict with shift schedules.  Personnel were required to attend either session.  The commander stated the applicant admitted that he was aware of the meeting prior to 4 January, but he forgot to attend the morning session when he was off duty.

	e.  On 7 January 1966, his appeal was denied.

5.  While assigned to the STRATCOM Facility in Bolivia, he received a conduct rating of "good."

6.  On 23 February 1966, he was released from active duty.  He completed 2 years, 11 months, and 29 days of active service that was characterized as honorable.  His DD Form 214 does not show he was awarded the Army Good Conduct Medal.

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states that NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP may be set aside or removed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.

	a.  A commander will personally exercise discretion in the NJP process by:

		(1)  evaluating the case to determine whether proceedings under Article 15 should be initiated,

		(2)  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and

		(3)  determining the amount and nature of any punishment if punishment is appropriate.

	b.  When NJP is imposed under Article 15, UCMJ, all action taken, including notification, acknowledgements, imposition, appeal, action on appeal, or any other action, would be recorded on a DA Form 2627.  The decision to file the original DA Form 2627 in the performance section or the restricted section of the Army Military Human Resource Record (AMHRR) will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by any superior authority.  However, the superior authority cannot direct filing an Article 15 in the performance section when the imposing commander directed filing it in the restricted section.

	c.  The decision to file the original DA Form 2627 in the performance or restricted portions of the AMHRR will be made by the imposing commander at the time punishment is imposed.

	d.  Application for removal of a DA Form 2627 from a Soldier's AMHRR 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, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

8.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualified period of active duty enlisted service.  This period was each 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.

9.  The Manual for Courts-Martial Table of Maximum Punishments, in effect at the time, shows the maximum punishment for failure to go to an appointed place of duty is:

* forfeiture of two-thirds of pay for 1 month
* confinement not to exceed 1 month

DISCUSSION AND CONCLUSIONS:

1.  He contends he was given an Article 15 without his knowledge and he had no opportunity to rebut the charge.  However, the evidence shows he was notified of his commander's intention to impose NJP on 4 January 1966.  In addition, he appealed his NJP and provided a statement admitting he did not attend the meeting on 4 January 1966.

2.  While he felt the NJP imposed was harsh for the offense, he could have received much worse if he had been referred to a court-martial.

3.  He had been promoted to sergeant, a position of authority and responsibility.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in his patriotism, valor, fidelity, and professional excellence.  As a leader who is supposed to provide a good example for his subordinates, his conduct was clearly prejudicial to good order and discipline.

4.  It is reasonable to conclude the officer imposing the applicant's NJP exercised discretion in the NJP process based on the applicant's offense and considered any mitigating factors and factors raised to cast doubt on the applicant's guilt.  The record establishes the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt.

5.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law, and regulations, the Article 15 was appropriately issued and filed in the applicant's AMHRR.  There is no evidence of error or injustice.  There is insufficient clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from his AMHRR.

6.  He did not meet the requirement of having all "excellent" conduct and efficiency ratings for eligibility for the Army Good Conduct Medal.  He received a conduct rating of "good" from the STRATCOM Facility, Bolivia.  Therefore, he is not eligible for the award of the Army Good Conduct Medal.

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)                                         AR20120000176



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ABCMR Record of Proceedings (cont)                                         AR20120000176



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