BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20120022823


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, in effect, the setting aside of the nonjudicial punishment (NJP) he received under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on or about 22 November 1976.  He further requests:

* restoration of his rank/grade to private/E-2 
* reimbursement of his lost pay and allowances
* reimbursement of the $100.00 pay he forfeited as part of his punishment

2.  The applicant states his punishment was suspended, conditioned upon        10 days of extra duty and restriction, which he performed.  On 22 November 1976, he waived appeal of his NJP and the suspended penalty was surreptitiously imposed by a separate, unsigned order.

3.  The applicant provides copies of two DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ).

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 25 March 1976.  He completed one station unit training at Fort Sill, OK, where upon completion, he was awarded military occupational specialty 15D (Lance Missile Crewman).  

3.  On 25 July 1976, he was promoted to the rank/grade of private/E-2.

4.  On 19 November 1976, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at the time prescribed on or about 10 November 1976.  His DA Form 2627 shows that, having been afforded the opportunity to consult with counsel, he did not demand a trial by court-martial, did not desire a spokesman to accompany him, did not present matters in defense and/or extenuation, and he did not request an open hearing.  

5.  His punishment consisted of a reduction to the rank/grade E-1 and forfeiture of $100.00 pay for 1 month (both suspended for 60 days), and extra duty and restriction for a period of 10 days.  His commander advised him of his right to appeal his punishment within 5 days of the date of imposition.  On 22 November 1976, he declined appeal of his NJP.

6.  His record contains a second DA Form 2627, which vacated the suspended portion of his imposed punishment on 22 November 1976.  His record is void of the facts and circumstances that resulted in the vacating of his suspended punishment.

7.  On 9 May 1977, he was discharged from the Army under honorable conditions.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged in the rank/grade of private/E-1, after completing 1 year, 1 month, and 15 days of total active service.

8.  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 (MCM).  Chapter 3, of the regulation in effect at the time, implemented and amplified Article 15 of the UCMJ and Chapter XXVI of the MCM.  

   a. Paragraph 3-4 states a commander should 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.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who have shown they 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.

   b. Paragraph 3-17 states the purpose of suspending punishment, ordinarily, will be to grant to a deserving member a probationary period during which he/she may show that he/she deserves remission of the suspended portion of his/her NJP.  If, because of further misconduct by the member within this period, it is determined that remission of the suspended punishment is not warranted, the suspension may be vacated and the suspended portion of the punishment executed (emphasis added).  Action vacating a suspension will be recorded in accordance with Notes 10 and 11, Part III, DA Form 2627.  Unless the suspension is vacated prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action.  

   c. Paragraph 3-20 describes the setting side of punishment and restoration or rights, privileges, or property.  This is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored. 

      (1)  NJP is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  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.  

      (2)  “Clear injustice” means that there exists an unwaived legal or factual error that 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.  Clear injustice does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his Article 15 should be set aside, his rank should be restored, his pay should be reimbursed, and he should be paid back-pay for lost pay and allowances.  He contends the suspended reduction and forfeiture of pay were unfairly and unjustly vacated.  

2.  The evidence of record confirms the imposing commander administering the Article 15 proceedings, during a closed Article 15 hearing and after consideration of all the evidence, determined the applicant committed the offense in question.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the charged offense(s).  

3.  The imposing commander’s function is to make a decision as to whether or not a Soldier committed the offense in question and render an appropriate punishment if necessary.  These decisions will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence or they failed to follow the applicable regulations.  

4.  The evidence of record shows he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels.  However, the applicant waived his right to a trial by court-martial, opted for a closed Article 15 hearing, and waived his right to an appeal.

5.  He did not provide convincing evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings, or that the UCMJ was violated in any way.

6.  His dissatisfaction with the outcome of this Article 15 does not invalidate it.  He violated the UCMJ and was punished for it.  It appears, at some point after his commander suspended a portion of his punishment, his conduct warranted his commander's reconsideration and the previous suspension was vacated.  The absence of specific information related to his conduct does not invalidate his commander's decision to vacate the suspended punishment.   

7.  There is neither an error nor an injustice and there is no reason to set the Article 15 aside or to restore his rights, privileges, or rank.





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)                                         AR20120015814



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ABCMR Record of Proceedings (cont)                                         AR20120022823



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