IN THE CASE OF:	  

		BOARD DATE:  6 September 2012

		DOCKET NUMBER:  AR20120004527 


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, UCMJ), dated 23 November 1966, from his Army Military Human Resources Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).

2.  The applicant states:

* he received an Article 15 for being disrespectful to his section chief
* the reason he was disrespectful was because he was sexually assaulted by his section chief
* no one would listen to his part of what happened
* he is currently getting counseling from the Department of Veterans Affairs (VA) as a result of his assault
* he does not believe it was fair and he attempted to tell his commander about the assault and he was told to keep his mouth shut

3.  The applicant provides a copy of the DA Form 2627-1, dated 23 November 1966, and a letter from a VA psychiatrist, dated 30 May 2012.

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 5 January 1965.  He completed training and he was awarded military occupational specialty 56C (petroleum storage specialist).

3.  On 8 June 1965, the applicant accepted nonjudicial punishment (NJP) for behaving disorderly in quarters.  The DA Form 2627 (Summarized Record of Proceedings Under Article 15, UCMJ) was filed in his AMHRR.

4.  The applicant arrived in Germany on 12 August 1965.

5.  On 23 November 1966, the applicant accepted NJP for being disrespectful, uttering profane statements, and directing an obscene gesture towards his section chief.  He did not demand trial by court-martial.  He also did not appeal the imposed punishment.  This DA Form 2627-1 was filed in his AMHRR.

6.  The applicant departed Germany on 14 December 1966 en route to the United States for separation processing. He was honorably released from active duty (REFRAD) on 19 December 1966 as an overseas returnee.

7.  There is no evidence of record and the applicant did not provide any evidence that shows he ever complained to anyone or any support agency about being sexually assaulted by his section chief while he was in the Army.

8.  The applicant submits a letter from a VA psychiatrist, dated 30 May 2012, who states he has been treating the applicant for post-traumatic stress disorder, which by the applicant's report, resulted from a brutal rape he experienced at knifepoint at his base in Germany some 40 years ago.

9.  Army Regulation 27-15 (Legal Services), in effect at the time and subsequently superseded by Army Regulation 27-10 (Military Justice), prescribed and implemented the policies and procedures pertaining to the administration of NJP.

	a.  Paragraph 11 states that Army personnel attached to or embarked in a vessel could not demand a trial by court-martial in lieu of NJP.  All other members of the Army could demand trial by court-martial in lieu of NJP under Article 15.  The officer who intended to impose the punishment would notify the member concerned of that intent and, if the right to demand trial by court-martial existed, would afford the member a reasonable period in which to decide whether to demand a trial by court-martial.  If the member demanded a trial by court-martial as to any offense involved, further action would not be taken to impose NJP as to that offense.  The type of court-martial to which the case would be referred or recommended for referral was a matter within the discretion of the appropriate commanding officer.

	b.  Paragraph 12 states the power to impose NJP charges a commanding officer or an officer to whom that power has been delegated with the grave responsibility of exercising his authority in a completely judicious manner.  Authority under Article 15 must be administered with absolute fairness in a formal and dignified manner at every stage of the proceedings.  Whenever practicable, the commanding officer should impose the NJP in the presence of the member.  The commander might then explain to the member such matters as the factors which he considered in determining the NJP and the applicable appellate rights and procedures which were available to the member.

	c.  Paragraph 14b (Distribution of Article 15) states the DA Forms 2627,
2627-1, and 2627-2 would be prepared in an original and two copies.  Any written statement or other documentary evidence pertaining to the case which was considered by the officer authorized to impose the NJP would be attached to the original file.  In cases involving enlisted personnel, the original form was forwarded to the U.S. Army Personnel Services Support Center, Fort Benjamin Harrison, IN, for filing as a permanent document in the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  The letter he submits from his psychiatrist has also been considered.  However, there is no evidence in the available record that corroborates the applicant's contention that he was sexually assaulted by his section chief while he was in the Army.  The letter he submits from his psychiatrist is dated 30 May 2012, which is over 40 years after his REFRAD.

3.  The available evidence shows he accepted NJP twice while he was in the Army.  Once for behaving disorderly in quarters and the second time for being disrespectful, uttering profane statements, and directing an obscene gesture towards his section chief.  He did not demand trial by court-martial in either case. He elected also not to appeal his imposed punishments either.  The NJPs were properly filed in his AMHRR.  The fact that he now contends he was sexually assaulted while he was in the Army, which was the basis for the NJP he received on 23 November 1966, is not substantiated by the evidence of record.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting 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)                                         AR20120004527



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ABCMR Record of Proceedings (cont)                                         AR20120004527



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