IN THE CASE OF:	  

		BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120019286 


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 correction of her military records by removing her nonjudicial punishment (NJP) and the record of her being absent without leave (AWOL).  She further requests that her rank be restored and reimbursement of monies taken.

2.  The applicant states she was raped and sexually harassed while at Fort Jackson, SC.  She went through her chain of command to report the abuse.  Her company commander told her she would not have a problem if she had just gone to bed with them.  She locked her arms room, got on a plane, and went to a military post in Michigan.  She told the powers to be at that post [about what happened] but was sent back to Fort Jackson.  That same night she received NJP for AWOL and was reduced in rank and had money taken from her that was being used for the care of her sick father.  He was a World War II veteran who was on a kidney machine.  Nothing was ever done to her violent rapist.  She was sent back to the same unit.

3.  The applicant provides no additional 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.  On 30 September 1981, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  On 15 December 1981, the applicant was assigned for duty as a supply clerk with Company A, 7th Battalion, 2nd Brigade, at Fort Jackson, SC.

4.  On 31 March 1982, the applicant was reassigned to Company C within the same battalion, for duty as the unit armorer.  She was advanced to private first class, pay grade E-3 on 20 April 1982.

5.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows she was AWOL from 19 May to 4 June 1982.

6.  A review of the applicant's Military Personnel Records Jacket (MPRJ) shows the following:

	a.  DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) dated 
7 June 1982:

* Company grade NJP for AWOL from 19 May to 5 June 1982
* The punishment included a reduction in rank to private, pay grade E-2 and a forfeiture of $144.00
* The original DA Form 2627 was to be filed in the "OPMJ" (interpreted to mean the MPRJ)

	b.  16 August 1982: Reassigned to Company E, 14th Battalion, 4th Brigade, Fort Jackson, SC;

	c.  1 December 1982: Advanced to private first class, pay grade E-3;

	d.  1 August 1983: Advanced to specialist four, pay grade E-4; and

	e.  DA Form 2627 dated 19 September 1984:

* Field grade NJP for wrongful use of marijuana
* The punishment included reduction to private, pay grade E-2, forfeiture of $334.00, and restriction for 30 days
* She appealed and was granted relief from the 30-day restriction
* The commander directed filing of the original DA Form 2627 in the Performance fiche of her Official Military Personnel File (OMPF)

7.  On 4 October 1984, the applicant's commander initiated action to bar her from reenlistment.  The commander stated that the applicant's job performance had deteriorated steadily since May 1984.  She had been counseled by her supervisor and the first sergeant on numerous occasions.  She was enrolled in the alcohol and drug prevention program and had completed the course in April 1982.  She had a positive urinalysis for marijuana and cocaine on 13 August 1984.  The commander also stated the applicant had received 3 company grade NJPs and a summarized NJP.  The applicant indicated that she had received a copy of the recommendation and did not desire to submit a statement on her own behalf.  On 5 October 1984, the appropriate authority approved the bar to reenlistment.

8.  On 16 October 1984, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement).  She had completed 3 years of creditable active duty service and had 16 days of lost time.

9.  The applicant's Microfiche copy of her OMPF, now known as the Army Military Human Resource Record (AMHRR), is not available for review.

10.  Army Regulation 27-10 (Military Justice) prescribes the guidelines for the filing of NJP.

	a.  It states that the decision to file the NJP on the performance or restricted portion of the AMHRR will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final.

	b.  It provides guidance for setting aside the punishment imposed by NJP and restoration of rights, property and privileges.  The setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges or property affected by the portion of the punishment set aside are restored.

	c.  NJP is wholly set aside when the commander who imposed the punishment, a successor-in-command or a superior authority sets aside all NJP imposed upon an individual.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  Clear injustice means that there exists an unwaived legal or factual error which clearly and affirmatively injured the substantial rights of the soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected by removing her NJP and the record of her AWOL because she was raped and sexually harassed.  She further request that her rank be restored and monies taken reimbursed.

2.  The available evidence of record indicates that the applicant accepted four NJPs of which one was a company grade punishment for AWOL and another was a field grade punishment for the wrongful use of controlled substances.  Only two NJP are contained in the available records.

3.  The evidence in this case suggests that the NJPs were properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized her rights.

4.  There is no evidence of record and the applicant has not provided any documentary evidence showing that she was raped or sexually abused.  Furthermore, she has not shown that any of her misconduct was the result of such abusive actions against her.  She clearly admits that she left her assigned place of duty and was subsequently returned to her unit where she received NJP for her absence.

5.  There is no evidence showing the applicant suffered any injustice as a result of the NJP she received.  Accordingly, there is no evidentiary basis for setting aside any or all of the NJP

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20120019286





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ABCMR Record of Proceedings (cont)                                         AR20120019286



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