IN THE CASE OF:
BOARD DATE: 31 January 2013
DOCKET NUMBER: AR20120012373
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 that will affect his severance and monthly disability payments.
2. The applicant states he was reduced from SGT/E-5 to specialist (SPC)/
E-4 while awaiting discharge by a medical board due to medical profiles that were hindering him.
3. The applicant provides:
* Orders 352-524, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, dated 18 December 1990
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
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 2 December 1986. He completed training and he was awarded military occupational specialty 82C (Field Artillery Surveyor).
3. Orders 352-524, dated 18 December 1990, promoted the applicant from SPC to SGT, effective 1 January 1991.
4. On 18 February 1992, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent from his place of duty from 5 February to 7 February 1992. His punishment consisted of a forfeiture of pay, extra duty, and restriction. He elected not to appeal his punishment.
5. On 22 June 1992, he accepted NJP under the provisions of Article 15, UCMJ for failing to go at the time prescribed to his appointed place of duty on 4 June 1992. His punishment consisted of a reduction SPC/E-4 and a suspended forfeiture of pay. He elected to appeal his punishment. On 26 June 1992, the applicant's brigade commander denied his appeal.
6. The complete facts and circumstances surrounding his discharge are not available for review; however, on 16 November 1992, he was honorably discharged from active duty by reason of physical disability with severance pay. The DD Form 214 he was issued at the time shows his rank/grade as "SP4"/E-4.
7. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request to correct his record to restore his rank to SGT was carefully considered, but is not supported by the evidence in this case.
2. The evidence of record shows he was reduced in rank from SGT to SPC for violating the UCMJ. He elected to appeal and submit additional matters. After consideration of all matters presented in his appeal, the appellate authority determined the proceedings were conducted in accordance with law and regulation and the punishment imposed was neither unjust nor disproportionate to the offense committed.
3. The applicant had the opportunity to turn down the Article 15 and demand trial by court-martial at the time it was issued; 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. The applicant's record is void of any evidence and he has not provided any evidence which shows he was ever fully eligible for promotion consideration to SGT following his reduction to SPC.
5. 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) AR20120012373
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ABCMR Record of Proceedings (cont) AR20120012373
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