IN THE CASE OF:	  

		BOARD DATE:	    5 November 2013

		DOCKET NUMBER:  AR20130004691 


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 reconsideration of an earlier request:

	a.  to remove a DA Form 2627-1 (Record of Proceedings Under
Article 15, Uniform Code of Military Justice (UCMJ)), dated 4 January 1966, from his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File.

	b.  for award of the Army Good Conduct Medal.

2.  The applicant states:

	a.  he was not duly and properly represented.

	b.  he never physically attended any proceedings in this regard that he remembers.

	c.  he never admitted to anything other than he was not notified of any such meeting by the commander who was a visiting commander.

	d.  it was not a military installation he was stationed at; it was an Embassy and there was no proper representation available.  There was no Adjutant General (AG) in the Embassy or anywhere near La Paz; the nearest was the Panama Canal Zone.


	e.  this is the first he heard of a fine and extra duty, he was never informed of such a thing, nor was he ever told that he would not get an Army Good Conduct Medal.

	f.  he simply was told an Article 15 was filed against him and he was never given an opportunity to rebut the charges; it was presented to him as though it was conclusive and final.

	g.  some of the statements as to his responses at the time and the admissions are totally inaccurate and false.  It was clear at the time a major (MAJ) was there and everyone knew it.  This MAJ did not like him from the beginning and filed this unnecessary and deliberate charge using the Article 15 because he had nothing else he could use.  He was not originally notified of this supposed meeting when the MAJ arrived, and he never asked his supervisor to work for him at any time least of all the stated time and date.

	h.  when he arrived for duty he was told by the Embassy that they answered to Ambassador Henderson and that is exactly what they did for their term on duty there.  There was one exception, when the MAJ visited for 2 or 3 days.

	i.  they lived on their own in La Paz, not on a military installation.

	j.  he was never given an opportunity to rebut any of this and he never knew of any type of proceedings.  If he had, he would have sought representation through the Panama AG's office.

	k.  he is a proud veteran and proud of serving his country; however, this is a travesty and major injustice and false.  He wants and deserves the Army Good Conduct Medal he earned serving in the Army.

	l.  based on youth, lack of experience, and knowledge in this area he became an innocent victim of a vindictive commander.

	m.  he was denied due process because of a lack of availability of legal counsel in La Paz at the Embassy.  His station was listed as a remote area with hazardous duty pay and many normal services were not available.  He never admitted to any such charges at any time and he was never offered counsel or services to rebuke any of this, nor was it ever explained to him in detail.

	n.  this denial and the denial since discharge is totally unwarranted, unjust, and may be illegal.


	o.  he would not have had a rating for conduct as "Good" nor would he have been promoted to SGT/E-5 if he did not earn and deserve his Army Good Conduct Medal.

3.  The applicant provides an undated self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120000176, on 11 September 2012.

2.  The applicant's arguments are new evidence that will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 25 February 1963 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 72B (communications center specialist).  He arrived in La Paz, Bolivia, on 6 February 1964.  On 30 June 1965, he was promoted to SGT/E-5.

4.  On 4 January 1966, he accepted non-judicial punishment (NJP) under the provisions of Article 15, UCMJ for failing to attend the Facility Commander's meeting as ordered.  Section II (Acknowledgement or Notification) of the
DA Form 2627-1 for this action shows he did not demand trial by court-martial and that matters in extenuation, mitigation, or defense were not being submitted.  He signed this section indicating his acknowledgement of the pending action.

5.  On 5 January 1966, the imposing commander imposed the punishment of a forfeiture of pay and 14 days of extra duty.  The applicant was advised of his right to appeal the imposed punishment to the next higher commander.

6.  On the same date, he appealed the punishment.  He stated he felt the punishment was excessive for his offense.  There were two meetings scheduled for 4 January 1966 and he admittedly did not attend the morning session.  However, he asked his supervisor if he would cover the communications center while he attended the afternoon session.  He received a negative reply from his supervisor.  He realized he did not comply with his commanding officer's directive, but he did make an effort to alleviate his predicament and requested this be taken into consideration upon review of the NJP.


	b.  His commander submitted a statement with his appeal.  The commander stated the meeting on 4 January 1966 was held in two identical sessions in order to avoid conflict with shift schedules.  Personnel were required to attend either session.  The commander stated the applicant admitted that prior to 4 January 1966, he was aware of the meeting, but he forgot to attend the morning session when he was off duty.

	c.  On 7 January 1966, the appeal authority denied the applicant's appeal.

7.  There are no orders for the Army Good Conduct Medal in the available records.  His DA Form 20 (Enlisted Qualification Record) shows he received a conduct rating of "Gd" (Good) during the period 30 April 1965 to 13 February 1966.

8.  On 23 February 1966, he was honorably released from active duty as an overseas returnee.  He completed 2 years, 11 months, and 29 days of total active service.  His DD Form 214 does not show award of the Army Good Conduct Medal.

9.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  It states a commander will personally exercise discretion in the nonjudicial process, evaluate the case to determine whether proceedings under Article 15 should be initiated, and determine whether the Soldier committed the offense where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial.  It states the authority to impose NJP charges a commander with the responsibility of exercising the commander’s authority in an absolutely fair and judicious manner.  It states the imposing commander is not bound by the formal rules of evidence before courts-martial.

10.  Application for removal of a DA Form 2627 from a Soldier's AMHRR based on an error or injustice will be made to the ABCMR.  It further states there must be compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

11.  Army Regulation 672-5-1 (Military Awards), in effect at the time, provided that the Army Good Conduct Medal was awarded to individuals who completed a qualified period of active duty enlisted service.  This period was each 3 years except in those cases when the period for the first award ended with the termination of a period of Federal military service.  The enlisted person must have had all "excellent" conduct and efficiency ratings and no convictions by a court-martial.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he never admitted to anything other than he was not notified of any such meeting by the commander.  However, in his NJP appeal he admitted there were two meetings scheduled for 4 January 1966 and he did not attend the morning session/meeting.

2.  Although he contends he was never given an opportunity to rebut the NJP offense, evidence shows he appealed the NJP on 5 January 1966.

3.  His contention that he was not duly and properly represented relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, he did not demand a trial by court-martial and voluntarily chose to accept NJP.

4.  There is no evidence the DA Form 2627-1 was improperly imposed.

5.  There are no orders for the Army Good Conduct Medal in the available records.  His military record shows he had a "Good" conduct rating during the period 30 April 1965 to 13 February 1966 which is a disqualifying factor for award of the Army Good Conduct Medal.

6.  In view of the foregoing, there is an insufficient evidentiary 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 to amend the decision of the ABCMR set forth in Docket Number AR20120000176, dated 11 September 2012.



      ____________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)                                         AR20130004691





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ABCMR Record of Proceedings (cont)                                         AR20130004691



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