BOARD DATE:	  4 October 2012

		DOCKET NUMBER:  AR20120005914 


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 removal of a summary court-martial that he received in 1967 from his Army records.

2.  The applicant states:

	a.  he received the summary court-martial while stationed in Ethiopia in 1967 - 1968.  While performing duties as a team chief, unbeknownst to him, two members of his team provided false information and falsified his initials on record books.  He and his team were court-martialed for these misdeeds.

	b.  his officer in charge (OIC) and commander both felt he had been lied to and was not guilty of the accusations.  His OIC burned the record books and his commander assured him the court-martial records were written with mistakes; therefore, it would be thrown out and nothing would come of it.  However, the higher-ups in Italy wanted to make an example of someone, so they picked him.  They approached another major in the unit and told him to retry the applicant and if he got a conviction they would promote him to light colonel.

	c.  he proved the Army negligent on three counts and insisted without proof they had no case.  His boss had burned the record books.  He was convicted and received a reduction to private (PV2)/E-2 and a forfeiture of pay.

	d.  following his summary court-martial, he was constantly badgered by the executive officer until he was so stressed he thought about killing himself.  His 


career in the engineers was over because headquarters made sure everyone in the field and home knew about his court-martial.  He left the service and stayed out for approximately 18 months, but missed it and returned.  He was later awarded a top secret security clearance.

3.  The applicant provides:

* Seven DA Forms 2166-6 (Enlisted Evaluation Report)
* Convening authority action, dated 1 December 1967
 
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 (RA) on 6 June 1966 for a period of 3 years.  He completed his training and he was awarded military occupational specialty 82D (topographic surveyor).  He arrived in Ethiopia on 17 June 1967.

3.  He provided a convening authority's action, dated 1 December 1967, that states "It appears from the record that the specification of the charge fails to allege any offense cognizable by courts-martial.  The proceedings, finding, and sentence are invalid.  Another trial is ordered before another court-martial to be hereafter designated."

4.  The available records do not contain a DD Form 2329 (Record of Trial by Summary Court-Martial).  However, a DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record)) shows that on 4 January 1968, he was convicted by a summary court-martial of knowingly permitting false data to be entered in an official document (field survey book), it being his duty to insure that the correct data was entered into said book.  He was sentenced to be reduced to private first class (PFC)/E-3 and to forfeit $45.00.  On 10 January 1968, the convening authority approved the sentence.


5.  He departed Ethiopia on 2 February 1968.  On 5 June 1969, he was honorably released from active duty and he was transferred to the U.S Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.  He completed 3 years of total active service.

6.  On 7 January 1971, he enlisted in the RA and he remained on active duty through continuous reenlistments until he retired on 31 August 1988 for length of service in the rank/grade of master sergeant (MSG)/E-8.

7.  A review of the applicant's Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), did not reveal a copy of the DD Form 2329 adjudged on 4 January 1968.

8.  Army Regulation 600-8-104 (Army Military Human Resources Record Management), formerly known as "Military Personnel Information Management/
Records," prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  Table B-1 (Authorized Documents) of the regulation provides that a DD Form 2329 will be filed in the "Performance" folder where there is an approved finding of guilty on at least one specification.  If all approved findings are not guilty, file the form and all related documents in the "Restricted" folder.  If all charges and specifications are later dismissed or if all findings of guilty have been reversed in a supplemental action, remove all related documents from the "Performance" folder and transfer them to the "Restricted" folder.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's subsequent honorable service from 1971 to 1988 is acknowledged; however, there is no evidence the summary court-martial in question was improperly imposed.  Although his record does not contain a
DD Form 2329 as required by the governing regulation, his record confirms he was in fact found guilty by a summary court-martial as evidenced by a DD Form 20B of record.  Even if all charges and specifications were later dismissed or if all findings of guilty had been reversed in a supplemental action, all related documents would have been transferred from the "Performance" folder to the "Restricted" folder.

2.  In view of the foregoing, there is no 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)                                         AR20120005914



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ABCMR Record of Proceedings (cont)                                         AR20120005914



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