IN THE CASE OF:	

	BOARD DATE:  18 September 2012

	DOCKET NUMBER:  AR20120002009


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 the removal of 5 separate Article 15s (nonjudicial punishment (NJP) imposed under the Uniform Code of Military Justice (UCMJ)) from his personnel records.

2.  The applicant states he has enclosed a truthful explanation for each of his      5 instances of NJP.  He further states:

* he gives his permission to the Board to contact his psychiatrist at the Tomah, WI, Department of Veterans Affairs (VA) Hospital in regard to her findings relevant to his instances of NJP
* his Jewish friend, Charles Mxxxxxxx, an orthodox Jew he joined the Army with, was murdered by his noncommissioned officer (NCO) –in–charge (NCOIC), Sergeant (SGT) Rxxxxxxxx, of his basic training platoon
* the NCOIC of his basic training platoon, SGT Wxxxxxx, could confirm this
* his NJP represented 3 years of severe physical and mental abuse he suffered – over-extreme measures that resulted in his hospitalization on numerous occasions
* to this day he still suffers from night sweats and poor sleep
* he was a prisoner for 3 years in the Army and was never treated with humanity
* he survived attempted murder on his own life
* he would welcome the opportunity to testify before a congressional hearing about his treatment as a Jewish Soldier in the Army

  
3.  The applicant provides:

* DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ), dated 27 January 1968, with a corresponding typed statement of explanation
* DA Form 2627-1, dated 29 August 1968, with a corresponding typed statement of explanation
* DA Form 2627-2 (Record of Appellate or Other Supplementary Actions under Article 15, UCMJ), dated 30 September 1968, with a corresponding typed statement of explanation
* DA Form 2627-1, dated 8 May 1969, with a corresponding typed statement of explanation
* Page 2 of a DA Form 2627-1, dated 12 May 1969, with a corresponding typed statement of explanation
* A letter from a staff psychiatrist at the VA Hospital in Tomah, WI, dated       9 June 2010
* A letter from Mr. James T. Pxxxxx, dated 14 June 2010
* A letter from Mr. Gary K. Hxxxx, dated 15 June 2010
* A 3-page typed statement  

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 9 August 1966.  He completed training and was awarded military occupational specialties 05B (Radio Operator) and 05C (Radio Teletype Operator).

3.  On or about 31 March 1967, upon the completion of his initial entry training, he was assigned to the 14th Aviation Company (Air Traffic Control), 15th Aviation Group, Schwäbisch Hall, Germany, U.S. Army Europe.  

4.  On or about 18 June 1969, he was reassigned to the 122nd Aviation Company (Aerial Surveillance), 15th Aviation Group, Fliegerhorst Army Airfield, Germany, U.S. Army Europe.

5.  His record shows he accepted NJP under the provisions of Article 15, UCMJ, on 3 separate occasions:

   a. He received an Article 15 on 29 January 1968, for violating Article 92 of the UCMJ, for failing to obey a lawful order on 25 January 1968.  With respect to this Article 15, he did not demand trial by court-martial, he did not submit matters in extenuation, mitigation, or defense, and he elected not to appeal his punishment.

   b. He received an Article 15 on 30 August 1968, for violating Articles 84 and 86 of the UCMJ, for being incapacitated for the proper performance of duty, resulting from previous indulgence in intoxicating liquor on 17 August 1968, and for failing to go to his appointed place of duty at the appointed time on 17 August 1968.  With respect to this Article 15, he did not demand trial by court-martial, and he did not submit matters in extenuation, mitigation, or defense; however, he did elect to appeal his punishment.  As reason for his appeal, he stated he felt the punishment was too severe, and hampered his ability to process his application to marry a German national and check on her in the evenings.  On appeal, the Staff Judge Advocate (SJA) found his punishment was appropriate and not unjust or disproportionate to the offenses committed. 

   c. He received an Article 15 on 16 May 1969, for violating Article 134 of the UCMJ on 3 occasions, for wrongful possession and usage of marijuana on 8 and 10 March 1969.  With respect to this Article 15, he did not demand trial by court-martial, he did not submit matters in extenuation, mitigation, or defense, and he elected not to appeal his punishment.

6.  On 23 July 1969, he was honorably released from active duty and transferred to the U.S. Army Reserve.  The DD Form 214 he was issued shows he completed 2 years, 11 months, and 15 days of total active service, including       2 years, 3 months, and 23 days of foreign service.  The highest rank/grade he attained during his period of active service was specialist four/E-4.

7.  His available record is void of any documentation that shows he was hospitalized during his period of active service.




8.  His available record does not contain an Official Military Personnel File (OMPF).

9.  He provides:

   a. DA Form 2627-1, dated 27 January 1968, with a corresponding typed statement of explanation, which shows he received NJP on 29 January 1968 for disobeying a lawful order.  In his statement, he contends this NJP is an example of how he was hated for his Jewish faith.  He contends the order he disobeyed directed him to work on Saturday, his Sabbath day.  After enduring numerous slurs and derogatory names, he walked away against his platoon sergeant's orders.  He alleges his platoon sergeant retaliated by attempting to get another NCO in the unit to kill him with a knife. 

   b. DA Form 2627-1, dated 29 August 1968, with a corresponding typed statement of explanation, which shows he received NJP on 30 August 1968 for being incapacitated for the proper performance of duty, resulting from previous indulgence in intoxicating liquor.  In his statement, he contends this NJP was a fabricated lie; he contends he didn't drink alcohol at this point in time.  He contends this incident resulted from his refusal to end his dinner early so as to send a ham (amateur) radio message on behalf of his platoon sergeant.

   c. DA Form 2627-2, dated 30 September 1968, with a corresponding typed statement of explanation.  This DA Form 2627-2 is an SJA review of the punishment he received on 30 August 1968, resulting from the NJP he received for being incapacitated for the proper performance of duty, resulting from previous indulgence in intoxicating liquor.  The SJA determined the proceedings were conducted in accordance with law and regulations and the punishments imposed were neither unjust nor disproportionate to the offenses committed.  In his statement, he contends his platoon sergeant went to extraordinary lengths to rid the unit of Jews, going so far as to ordering other unit members to follow him for the purpose of physically assaulting him or possibly killing him. 

   d. DA Form 2627-1, dated 8 May 1969, with a corresponding typed statement of explanation, which shows he received NJP on 16 May 1969 for wrongful possession and usage of marijuana.  In his statement, he contends that even after he was reassigned to another unit, his former platoon sergeant reached out to the "rednecks" and "Jew haters" in his new unit to continue harassing him.  He contends the marijuana was planted in his vehicle. 

   e. Page 2 of a DA Form 2627-1, dated 12 May 1969, with a corresponding typed statement of explanation.  This is Page 2 of his DA Form 2627-1, dated     8 May 1969, which he received for wrongful possession and usage of marijuana.  In his statement, he details harassment he faced from various members of his unit that ultimately led to his suicide attempt and subsequent hospitalization.

   f. A letter from a staff psychiatrist at the VA Hospital in Tomah, WI, dated       9 June 2010, in which the psychiatrist diagnosed the applicant with post-traumatic stress disorder (PTSD) and depressive disorder not otherwise specified.  She states her professional opinion that the applicant's symptoms are more likely than not directly due to his military experiences/traumas.

   g. A letter from Mr. James T. Pxxxxx, dated 14 June 2010, in which the Mr. Pxxxxx relates his knowledge of the religious persecution and physical abuse that another individual of Jewish faith supposedly suffered during his service in the Army.

   h. A letter from Mr. Gary K. Hxxxx, dated 15 June 2010, in which Mr. Hxxxx relates his knowledge of the religious persecution and physical abuse another individual of Jewish faith supposedly suffered during his service in the Army.

   i. A 3-page typed statement, in which the applicant relates the mental and physical abuse he endured throughout his military career.  

10.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  Chapter 3 addresses the polices applicable to NJP.   It provides that commanders may impose NJP for the administration of discipline under the provisions of Article 15 of the UCMJ; however, commanders should first use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures, to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction, and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  Prompt action is essential for NJP to have the proper corrective effect.  Paragraph 3-15 states when punishment is imposed under Article 15, all action taken, including notification, acknowledgments, imposition, appeal, action on appeal, or any other action, will be recorded as follows:

   a. Paragraph 3-15a covers the forms of record used to record NJP, and states either DA Form 2627 (Summarized Record of Proceedings under Article 15, UCMJ), DA Form 2627-1, or DA Form 2627-2, whichever may be appropriate, will be used to record all action taken under Article 15.  DA Form 2627-1 will be completed in all cases involving commissioned and warrant officers, and in those cases involving enlisted persons in which punishment other than oral admonition or reprimand, restriction for 14 days or less, extra duties for 14 days or less, or a combination thereof is imposed.  In all other cases involving enlisted personnel either DA Form 2627-1 or DA Form 2627 may be utilized.  When an appeal is made or supplementary action is taken after the imposition of punishment, DA Form 2627-2 will be used to record all actions taken regardless of the form used initially. 

   b. Paragraph 3-15b covers the distribution of records of punishment.  It states DA Forms 2627, 2627-1, and 2627-2 will be prepared in an original and two copies.  Any written statement or other documentary evidence pertaining to the case which has been considered by the officer authorized to impose the NJP will be attached to the original file.  Subparagraph (2) states, in cases involving enlisted Soldiers, standard distribution for the forms will be as follows:

      (1)  The original of the DA Form 2627, 2627-1, or 2627-2 will be forwarded to the U.S. Army Personnel Services Support Center, ATTN: AGPE, Ft. Benjamin Harrison, IN 46249, for filing as a permanent document in the OMPF.
      
      (2)  The first copy of the DA Form 2627, 2627-1, or 2627-2 will be retained with the unit of assignment, and filed above the Field Personnel File Divider in the individual's DA Form 201 (Military Personnel Records Jacket (MPRJ)).
   
   (3)  The second copy will be given to the Soldier receiving the NJP.  

   c. Paragraph 3-15d covers the retention and disposition of DA Forms 2627, 2627-1, and 2627-2.  It provides that the MPRJ copy will be withdrawn and destroyed upon transfer of the individual from the organization, upon the complete setting aside of all punishments imposed, or upon the expiration of       2 years from imposition of the punishment, whichever shall first occur, provided that at the time of transfer, a period of 1 year has elapsed since imposition of the punishment and that all punishment imposed has been executed (with forfeitures collected and any period of detention of pay expired) and action has been completed on any appeal from such punishment.  If these conditions do not exist at time of transfer, the copy of the record of proceedings will be retained in the individual's personnel records which accompany him to his new assignment and retained therein until the foregoing conditions no longer exist.  In the case of enlisted persons, the officer may direct that the record of punishment be filed and administered in a manner that will preclude its availability to persons considering the individual for promotion.  A statement reflecting any such direction will be made in Section III of DA Form 2627 or Section V of DA Form 2627-1, as appropriate.  A superior authority when acting on an appeal or taking a supplementary action other than on appeal may also make this direction.  A statement reflecting any such direction by a superior authority will be made in that section of DA Form 2627-2 in which the action on appeal or supplementary action other than on appeal is recorded. Records of punishment not precluded from consideration in connection with promotions should be considered only for a 1-year period from date punishment is imposed. 
      
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of 5 separate Article 15s from his personnel records was carefully considered.  His available record contains evidence of only 3 instances of NJP.  

2.  The governing Army regulation states the original DA Form 2627, 2627-1, or 2627-2 will be forwarded to the U.S. Army Personnel Services Support Center, for filing as a permanent document.  Since his available record does not contain an OMPF, the remaining hardcopy record is the only official record to maintain the historical account of his service.  Absent an OMPF, it would be impractical, from a historical standpoint, to permanently remove his records of NJP.  As such, the applicant 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 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)                                         AR20080007602



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ABCMR Record of Proceedings (cont)                                         AR20120002009



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