BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120013399 


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 and grade to specialist four (SP4)/E-4. 

2.  The applicant states:

	a.  He was stationed at Fort Bragg, NC and on temporary duty at West Point, NY, in the summer of 1967.  He was told to report to the unit first sergeant (1SG) and when he did, the 1SG handed him some paperwork related to reenlistment.  Since he had just returned from Vietnam and knew if he reenlisted he would be sent back to Vietnam, he used improper language to tell the 1SG where to put the reenlistment paperwork.  

	b.  When he returned to Fort Bragg, NC, his unit 1SG handed him the paperwork for the Article 15 which reduced him to private first class (PFC)/E-3.  He filed an appeal before he left the orderly room but he does not believe that appeal ever left the orderly room.  He had too much pride to show the hurt at the time.  However, he is older and wiser now and he wants his record to be straight. 

	c.  He is sorry for his behavior; however, given the post-traumatic stress disorder (PTSD) at the time, his reaction was clearly not normal.  Only after years of having a short fuse and a failed marriage did he realize this condition.  

3.  The applicant provides a piece of congressional correspondence.


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's records show he enlisted in the Regular Army on 4 November 1964.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 64A (Light Vehicle Driver).  

3.  He served in Hawaii from 13 August 1965 to 16 March 1966.  He was assigned to Company B, 25th Supply and Transport Battalion, 25th Infantry Division.  

4.  On 10 September 1965, Company B, 25th Supply and Transport Battalion, 25th Infantry Division, published Unit Orders 62 promoting him to the permanent (P) rank/grade of PFC/E-3.

5.  On 3 February 1966, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order to turn in extra field gear and clothing.  His punishment consisted of a reduction to private/E-2, a forfeiture of pay, and extra duty/restriction.  He elected not to appeal his punishment.

6.  He was promoted back to PFC/E-3 on 18 April 1966 by authority of Unit Orders Number 12, issued by Company B, 25th Supply and Transport Battalion, 25th Infantry Division.  

7.  He served in Vietnam from on or about 17 March 1966 to 17 February 1967.  He was assigned to Company B, 25th Supply and Transport Battalion, 25th Infantry Division.  

8.  On 10 January 1967, Headquarters, 25th Supply and Transport Battalion, published Special Orders Number 3 appointing him to the temporary (T) rank/grade of SP4/E-4.  
9.  Upon completion of his Vietnam tour, he was reassigned to the 546th Transportation Company, Fort Bragg, NC.

10.  On 14 October 1967, 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 that date, Headquarters, 546th Transportation Company (Light Medium Truck), Fort Bragg, NC, published Special Orders Number 67 reducing him from SP4/E-4 to PFC/E-3 effective 
14 October 1967 for misconduct.  

11.  On 1 November 1967, Headquarters, Personnel Center, U.S. Army Garrison Troop Command, Fort Bragg, NC, published Special Orders Number 39 releasing him from active duty, effective 3 November 1967.  These orders listed his rank as a PFC.

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

* Promoted from PFC/E-3 to SP4/E-4 (T) by Unit Orders Number 3 issued by the 25th Supply/Transport Battalion on 10 January 1967
* Reduced from SP4/E-4 to PFC/E-3 (P) by Unit Orders Number 67, issued by the 546th Transportation Company on 14 October 1967

13.  His service records do not contain official orders promoting him back to SP4/E-4.

14.  He was honorably released from active duty on 3 November 1967.  His 
DD Form 214 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 "14 Oct 67 (14 October 1967)

15.  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.  

16.  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 4 November 1964 to 3 November 1967.  During this period, he served in Vietnam from on or about 17 March 1966 to 17 February 1967.  

2.  The evidence of record shows his misconduct started before he set foot in Vietnam.  He received his first Article 15 in February 1966, which reduced him to PFC/E-3.  

3.  He completed his Vietnam tour and he was reassigned to Fort Bragg, NC.  While there, he received another Article 15.  Although this Article 15 is not available for review, in the absence of evidence to the contrary it is presumed he 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 headquarters that reduced him to E-3.  Nothing here shows this misconduct and subsequent reduction were due to PTSD or any medical condition.

4.  The applicant had the opportunity to turn down the Article 15 and demand trial by court-martial at the time it was issued.  It appears he declined to do so.  A commander's decision cannot or should not be reversed without overwhelming evidence it was unlawful or egregiously unfair.  Here, the applicant has presented no such evidence.  

5.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data and information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  There is a reluctance to recommend that those records be changed.  While it is understandable the applicant desires to now remove the Article 15, there is not a sufficiently compelling reason for compromising the integrity of the Army’s records at this late date.  He is not entitled to any 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)                                         AR20120013399



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ABCMR Record of Proceedings (cont)                                         AR20120013399



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