BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120000720 


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 record by:

	a.  setting aside the nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code for Military Justice (UCMJ);

	b.  restoring his rank/pay grade to sergeant (SGT)/E-5; and

	c.  showing he was promoted to the rank/grade of staff sergeant (SSG)/E-6 prior to being honorably discharged.

2.  The applicant states he left Vietnam as a squad leader as an SGT/E-5.  He was 3 days late reporting to his next duty station.  He received an Article 15 for being absent without leave (AWOL) that resulted in the forfeiture of 1 month's pay and the loss of one stripe.  He can understand the forfeiture of pay, but he almost lost his life earning that stripe.  He states taking away his stripe was an insult to his service in Vietnam and a disgrace to him.  He did not deserve to lose a stripe and it was the same as taking his Purple Heart, Bronze Star Medal, or the Combat Infantryman Badge.  He further states that if he had not lost his rank he is very confident he would have made SSG/E-6 prior to leaving the service and given his pride back for serving in Vietnam.

3.  The applicant provides:

* Promotion orders
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Two DD Forms 215 (Correction to DD Form 214)
* A letter from the Veterans Administration (VA), dated 2 May 1989

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 was inducted into the Army of the United States on 24 February 1967.  Upon completion of initial entry training, he was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  He served in the Republic of Vietnam from 13 August 1967 to 4 August 1968.

3.  His record contains, and he also provides, Special Orders Number 148, issued by Headquarters, 25th Infantry Division, dated 27 May 1968.  These orders show he was appointed to the temporary grade of SGT/E-5.

4.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  Item 22 (Appointments and Reductions) he was advanced to SGT/E-5, effective 27 May 1968, by Special Orders Number 148, issued by Headquarters, 25th Infantry Division.

	b.  Item 22 he was reduced to the rank/grade corporal (CPL)/E-4, effective 2 October 1968, by Special Orders Number 172, issued by Headquarters,
194th Armor Brigade.

	c.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) he was AWOL from
23 to 25 September 1968.

5.  Special Orders Number 36, issued by Headquarters, U.S. Army Armor Center, Fort Knox, KY, dated 17 February 1969, show he was to be honorably released from active duty (REFRAD) on 27 February 1969 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) in the rank/grade of CPL/E-4.

6.  On 26 February 1969, he was honorably REFRAD at the expiration of his term of service.  He completed 2 years of total active service.  The DD Form 214 he was issued at the time, as amended by DD Forms 215, dated 22 March 1978 and 12 July 2004, show in:

	a.  Item 5a (Grade, Rate, or Rank) his rank as CPL.

	b.  Item 5b (Pay Grade) his pay grade as E-4.

	c.  Item 6 (Date of Rank) his date of rank as 2 October 1968.

	d.  Item 24 (Decorations, Medals, Badges, Commendations and Campaign Ribbons Awarded or Authorized) shows he was awarded or authorized the:

* Purple Heart
* Bronze Star Medal
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device 1960
* Combat Infantryman Badge
* Expert Marksmanship Badge with Pistol Bar
* Marksman Marksmanship Badge with Rifle Bar (M-14)

	e.  Item 30 (Remarks) he had 3 days of time lost due from 23 to                    25 September 1968.

7.  The complete facts and circumstances pertaining to the applicant's reduction from SGT/E-5 to CPL/E-4 or a copy of the Article 15 resulting in his reduction are not contained in the available records.  There is no evidence of record and he did not provide any evidence that shows he appealed his punishment and the results.  His record is also void of any evidence that shows he was subsequently advanced to SGT/E-5 or SSG/E-6 prior to his REFRAD.

8.  His record contains a DA Form 2376 (Notification to State Adjutants General Release from Active Duty of Obligated Reservist), dated 26 February 1969, that informed the Adjutant General of the State of Wisconsin the applicant was being REFRAD with the intent of enlisting in the Wisconsin Army National Guard.  This form shows the applicant was released in the rank/grade of CPL/E-4.

9.  The applicant provides a letter from a social worker at the VA Medical Center (VAMC), Phoenix, AZ, dated 2 May 1989.  The social worker stated the applicant was a recent graduate of the VAMC's intensive 90-day Post-Traumatic Stress Disorder (PTSD) Program and appeared to derive good benefit as a result.  The social worker provided a synopsis of the applicant's wartime service in the Republic of Vietnam and opined that he suffered from PTSD as a direct result of this service.  He further opined that the applicant is a loyal American who was wounded in his country's service and he was deserving of some compensation for his war-related problems and vocational rehabilitation so that he might become productive and fulfilled.

10.  Army Regulation 27-10 (Military Justice) states that commanders may impose NJP for the administration of discipline under the provisions of Article 15, UCMJ.  Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15.  This regulation also stipulates that only one appeal is permissible under Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides that Soldiers may be reduced in rank and grade as a result of misconduct in violation of the UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered and determined to lack merit.

2.  By his own admission, he was AWOL for 3 days and he was subsequently reduced to CPL/E-4 as a result of this action.  He readily admits his offense was deserving of some punishment, but contends the loss of rank was too harsh.

3.  Although the complete facts and circumstances of the applicant's reduction from SGT/E-5 to CPL/E-4 and the Article 15 itself is not contained in his available record, it is reasonable to presume his chain of command exercised its disciplinary authority prior to the applicant's discharge.  Accordingly, he would have been afforded an opportunity to appeal the reduction to a higher authority at the time, prior to a final decision being rendered.

4.  The ABCMR operates under the standard of presumption of regularity in governmental affairs.  This standard states that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  In the absence of evidence to the contrary, it must be presumed that the applicant was properly reduced from SGT/E-5 to CPL/E-4 as a result of his chain of command imposing punishment for his violation of the UCMJ.  Accordingly, it must also be presumed that it would not be appropriate under the circumstances in this case to grant the applicant's 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 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)                                         AR20120000720



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ABCMR Record of Proceedings (cont)                                         AR20120000720



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