IN THE CASE OF:	  

		BOARD DATE:  3 July 2012

		DOCKET NUMBER:  AR20120001165 


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, his grade be restored to specialist five/pay grade E-5.

2.  The applicant states his first sergeant vowed to take away his E-5 because he did not like the way he interacted with his subordinates.  One of his men came into his room and asked to use his car.  He was half asleep and hung over and allowed the Soldier to use his car.  The Soldier was stopped by the military police and he was busted for allowing him to use his car.  He was found unfit for combat duty and the reduction in rank and loss of parachute pay forced him into hardship.

3.  The applicant provides excerpts from his Military Personnel Records Jacket (MPRJ).

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 19 September 1961 for a period of 
3 years.  He immediately reenlisted on 1 October 1963 for a period of 6 years.

3.  On 30 May 1964, he was promoted to specialist five in military occupational specialty (MOS) 131.17 (Armor Crewman).

4.  On 17 May 1965, he accepted non-judicial punishment (NJP) for disrespect to a staff sergeant's wife at the main gate.

5.  On 24 August 1965, he was authorized hazardous duty pay (parachute) in MOS 11E (Armor Crewman) effective 27 July 1965.

6.  On 1 April 1966, he accepted NJP for allowing his vehicle to be operated on the post by a person not possessing a valid drivers license.  His punishment was reduction to specialist four/pay grade E-4.

	a.  On 11 April 1966, he appealed the punishment.  He felt that with his experience as an E-5 with 4 1/2 years in the Army and 23 months as an E-5 he should not have been reduced in grade for this offense.  He stated this was his first offense.

	b.  On 20 April 1966, his appeal was denied.  He was reduced to specialist four effective 1 April 1966.

7.  On 10 August 1966, he was removed from parachute status and airborne qualification due to physical disqualification.

8.  On 14 December 1966, he was awarded primary MOS 93B (Air Traffic Controller).

9.  On 16 May 1967, he was released from active duty.  His DD Form 214 with an effective date of 16 May 1967 shows he was a specialist four on the date of his separation.

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

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the non-judicial punishment 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.  Setting aside and restoration is an action 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.  Nonjudicial punishment 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.  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.

	c.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action.

DISCUSSION AND CONCLUSIONS:

1.  He contends he only had one previous offense; however, the record shows he accepted NJP on a previous occasion for disrespect to a staff sergeant's wife.

2.  He had been promoted to specialist five, a position of authority and responsibility.  In promoting him to specialist five, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a specialist five, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  He  violated this special trust and confidence when he provided the access to a vehicle to an unlicensed subordinate Soldier.  

3.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  It is reasonable to conclude the officer imposing the applicant's NJP exercised discretion in the NJP process for the applicant's offense.  Therefore, it is reasonable to conclude the officer 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.  The ABCMR does not find the applicant's submissions sufficient to overturn this finding.

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)                                         AR20120001165



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ABCMR Record of Proceedings (cont)                                         AR20120001165



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