IN THE CASE OF:	  

		BOARD DATE:  29 January 2013

		DOCKET NUMBER:  AR20120012364 


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 restoration of his rank/grade to sergeant (SGT)/E-5.

2.  The applicant states upon his return from Vietnam, he encountered difficulties adjusting to stateside duties.  His severe post-traumatic stress disorder (PTSD) was a major factor in his reduction.

3.  The applicant did not provide any evidence.

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 16 January 1967.  He completed basic combat training at Fort Jackson, SC, and advanced individual training at Fort Gordon, GA.  He was awarded military occupational specialty 11B (Light Weapons Infantryman). 

3.  On 4 May 1967, while in training at Fort Gordon, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 30 April to 3 May 1967.  His punishment consisted of a forfeiture of pay, and extra duty/restriction.  He elected not to appeal his punishment.

4.  He served in Vietnam from on or about 14 December 1967 to on or about 9 December 1968.  He was assigned to the 2nd Battalion, 501st Infantry,
101st Airborne Division.

5.  Special Orders Number 21, issued by Headquarters, 2nd Battalion,
501st Infantry, dated 21 May 1968, appointed him to the rank/grade of specialist four (SP4)/E-4.

6.  Special Orders Number 32, issued by Headquarters, 101st Airborne Division, dated 11 November 1968, appointed him to the rank/grade of SGT/E-5.

7.  Upon completion of his Vietnam tour, he was reassigned to B Company,
3rd Battalion, 504th Infantry, 82nd Airborne Division.

8.  On 21 April 1969, he declined trial by a court-martial and elected to accept NJP under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on two separate occasions.  His punishment consisted of a reduction to the rank/grade of corporal (CPL)/E-4.  He elected not to appeal his punishment.

9.  On 17 July 1969, he again accepted NJP for misconduct.  The DA Form 2627 (Record of Proceedings Under Article 15 of the UCMJ) is not available for review with this case.  However, on 1 August 1969, Headquarters, 82nd Airborne Division, Fort Bragg, NC published Special Orders Number 192 ordering his reduction from CPL/E-4 to private first class (PFC)/E-3, effective 22 July 1969 by authority of the Article 15 and Army Regulation 27-10 (Military Justice).

10.  On 19 January 1970, Headquarters, Personnel Center, U.S. Army Garrison Troop Command, Fort Bragg, published Special Orders Number 13 ordering his release from active duty, effective 20 January 1970.  These orders listed his rank as PFC.

11.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was reduced as follows:

* From SGT/E-5 to CPL/E-4 by authority of Special Orders Number 21, issued by Headquarters, 2nd Battalion, 501st Infantry, effective 21 May 1968
* From CPL/E-4 to PFC/E-3 by authority of Special Orders Number 192, issued by Headquarters, 82nd Airborne Division, Fort Bragg, effective
17 July 1969

12.  His service records do not contain official orders promoting him back to SP4/E-4 or SGT/E-5.

13.  On 20 January 1970, he was honorably released from active duty at the expiration of his term of service.  He completed 3 years of total active service.  The DD Form 214 he was issued at the time shows in:

* Items 5a (Grade, Rate or Rank) and 5b (Pay Grade) the entries "PFC" and "E-3," respectively
* Item 6 (Date of Rank) shows the entry "17 Jul 69 (17 July 1969)"

14.  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.

15.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation in effect at the time contains guidance on the preparation of the DD Form 214.  It states items 5a and 5b will show the active duty rank and pay 

grade at time of the Soldier's separation.  The rank is taken from the Soldier’s promotion/reduction orders and item 6 shows the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served on active duty from 16 January 1967 to 20 January 1970.  During this period, he served in Vietnam from on or about 14 December 1967 to on or about 9 December 1968.  

2.  The evidence of record shows his misconduct started before he arrived in Vietnam.  He departed his unit in an AWOL status while he was still in training.  He received his first Article 15 in May 1967.

3.  He completed his Vietnam tour and he was reassigned to Fort Bragg.  While there, he received two Article 15s:

	a.  During the first Article 15 proceedings, he declined trial by a court-martial and he elected not to submit any matters in extenuation, mitigation, or defense.  He then elected not to appeal his punishment.  An order was accordingly issued by his higher headquarters that reduced him to SP4/E-4.  Nothing in his record shows this misconduct and subsequent reduction were due to PTSD or any medical condition.

	b.  Although the second Article 15 is not available for review, in the absence of evidence to the contrary, it is presumed he also declined trial by a court-martial and he elected not to submit any matters in extenuation, mitigation, or defense.  An order was accordingly issued by his higher headquarters that reduced him to PFC/E-3.  Again, nothing in his record shows this misconduct and subsequent reduction were due to PTSD or any medical condition.

	c.  The applicant had the opportunity in each case to turn down these
Article 15s and demand trial by court-martial at the time they were imposed; however, he declined to do so.  A commander's decision cannot or should not be reversed without overwhelming evidence it was unlawful or egregiously unfair.  The applicant has presented no such evidence.

4.  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)                                         AR20120012364



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ABCMR Record of Proceedings (cont)                                         AR20120012364



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