IN THE CASE OF:	  

		BOARD DATE:	  28 May 2014

		DOCKET NUMBER:  AR20130014282 


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:

	a.  removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 7 April 1990 from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File) and

	b.  reversal of the reduction in rank imposed as nonjudicial punishment (NJP) on 7 April 1990 in the DA Form 2627.

2.  The applicant states:

	a.  He held the rank of sergeant first class (SFC)/E-7 for several years of his service.

	b.  In 1985, he requested and received a voluntary reduction to staff sergeant (SSG)/E-6 due to personal reasons.

	c.  In April 1990, he was disciplined for being absent without leave (AWOL) and he was reduced in rank.

	d.  He also decided to voluntarily separate from the New Mexico Army National Guard (NMARNG).  Several years later he was able to return to serve with the NMARNG and finish his service to receive an honorable discharge.  He was assigned to an E-5 position as it was the only vacant position available at the time.

	e.  He began receiving retired pay in March 2013.  He thought his pay was low.  He believed he would be paid at the rate of rank for the highest 3 years of service, which he believed to be pay grade E-7.  After inquiring, he found he had a disciplinary action in his service records from April 1990 for being AWOL and he was reduced in rank to E-5.  This action was not appealed at the time because he knew nothing of it until recently.  He and his former wife were separated at the time and he was not receiving his mail.

	f.  He believed his separation in April 1990 was voluntary and done properly.  Clearly he was wrong.  He cannot now deny the charges as he believes his commanding officer acted in good faith.

	g.  He requests removal of this disciplinary action from his records and reversal of this reduction in rank so he can receive retirement benefits at the E-7 pay grade level.  He states it is embarrassing and humiliating.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the NMARNG on 12 June 1973.  He was promoted to SFC/E-7 on 8 August 1982.

2.  NMARNG Orders 19-2, dated 31 October 1985, show he was reduced in rank from platoon sergeant/E-7 to SSG/E-6 effective 1 November 1985.  The additional instructions stated this was an administrative reduction action (without prejudice) based on a voluntary request for reduction.

3.  A DA Form 2627, dated 7 April 1990, shows he accepted NJP under the provisions of Article 15, UCMJ, for being absent from his appointed place of duty (unit training assembly) on 4 March 1990.  His punishment included reduction to pay grade E-5.  The imposing commander directed filing the DA Form 2627 in the restricted folder of his AMHRR.  The applicant signed the form on 7 April 1990 and elected not to appeal the punishment.

4.  On 11 June 1990, he was honorably discharged from the NMARNG in the rank of sergeant (SGT)/E-5.

5.  He enlisted in the NMARNG on 1 May 1997.  He was discharged and transferred to the Retired Reserve on 30 April 2003.

6.  U.S. Army Human Resources Command Orders C02-391047, dated 6 February 2013, show he was retired and placed on the Retired List in the rank/pay grade of SGT/E-5 effective 30 March 2013.

7.  The applicant's AMHRR contains a copy of the DA Form 2627 in question.

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and the Manual for Courts-Martial, Part V.  It states the decision whether to file a record of NJP in the performance section of a Soldier's AMHRR rests with the imposing commander at the time punishment is imposed.

10.  Paragraph 3-43 of Army Regulation 27-10 contains guidance for the transfer or removal of records of NJP from the AMHRR.  It states that applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the Army Board for Corrections of Military Records (ABCMR).  It further states there must be clear and compelling evidence to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's records by the ABCMR.

11.  Army Regulation 27-10 also states a commander will personally exercise discretion in the NJP 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.

12.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR.  It states a DA Form 2627 will be filed in the performance or restricted folder of the AMHRR as directed by the issuing commander in item 5 of the DA Form 2627.  Allied documents accompanying the Article 15 will be filed in the restricted folder.

13.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service.  Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist:  (a) revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or (b) there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the DA Form 2627 imposed on 7 April 1990 from his AMHRR and reversal of his reduction in rank.

2.  Although he contends he knew nothing of the DA Form 2627 until recently, the evidence shows he signed the form on 7 April 1990 and elected not to appeal the findings or the punishment.

3.  His remaining contentions were carefully considered.  However, there is no evidence showing the DA Form 2627 was improperly imposed.  It appears to have been the commander's judgment that being absent from his appointed place of duty (unit training assembly) warranted a one-grade reduction as punishment.  The Board should not substitute its judgment for that of the commander.

4.  The DA Form 2627 imposed on 7 April 1990 is properly filed in the applicant's records.

5.  Based on the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

6.  However, it appears he satisfactorily served in pay grade E-7.  The evidence shows he was promoted to SFC/E-7 in the NMARNG in August 1982 and he served in this pay grade until 1985 when he was voluntarily administratively reduced to SSG/E-6 to accept a unit position.  Therefore, in accordance with the governing regulation, his military records should be corrected to show he was placed on the Retired List in the rank/pay grade of SFC/E-7 effective 30 March 2013.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending U.S. Army Human Resources Command Orders C02-391047, dated 6 February 2013, to show he was placed on the Retired List in the rank/grade of SFC/E-7 effective 30 March 2013 and paying him any increased retired pay due as a result of this correction.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the DA Form 2627 imposed on 7 April 1990 from his AMHRR and reversal of his reduction in rank.



      ____________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)                                         AR20130014282



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ABCMR Record of Proceedings (cont)                                         AR20130014282



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