IN THE CASE OF:	  

		BOARD DATE:	  29 April 2014

		DOCKET NUMBER:  AR20130015914 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he retired in the rank/grade of staff sergeant (SSG)/E-6, the highest grade he held.

2.  The applicant states:

* he believes his reduction in grade was unjust because the command sergeant major (CSM) who heard his case believed the stories of his former spouse instead of his - a decorated Soldier
* he served his country proudly and faithfully for 20 years; his demotion was not only embarrassing but also unjust
* his former spouse was cheating on him and after their separation and finding out that he was investigating her, she complained to the battalion CSM that he was harassing her
* the battalion CSM ordered him to stay away from her; however, prior to their divorce, he happened to drive by the street where she lived due to a fire that occurred on her street
* while there, he stopped at the side of the street and talked to another individual; she joined the conversation and talked cordially for a few minutes
* the next day, the CSM called him to the office and reported that he had disobeyed a lawful order; his former spouse had called and accused him of harassing her
* he was about to be placed on the sergeant first class list and he trusted his chain of command to do the right thing
* he declined trial by a court-martial which turned out to be the worst mistake; the battalion CSM recommended his reduction and the battalion commander ultimately reduced him to sergeant (SGT)/E-5
* he appealed to the brigade commander and submitted a detailed action report but his appeal was denied
* at the time of his retirement, the rule was still to retire in the highest grade held but the rules changed and he had only 3 years to get his rank back
* he is still involved in his community and he helps veterans with their Department of Veterans Affairs loans 
* he has a concealed weapon license and if anything his former spouse said was true, he would not have been issued such a license

3.  The applicant provides:

* Résumé
* Letter of support from the Salvation Army
* Letter of support from a Secretary of County Board of Realtors
* Character reference letter from his wife
* Multiple letters to the Inspector General, his first sergeant, and his battalion CSM
* A photograph 
* Front page of a DA Form 4856 (General Counseling Form)
* Hand-written letters
* Self-authored memoirs 

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.  Having had prior enlisted service, the applicant reenlisted in the Regular Army on 26 October 1976.  He held military occupational specialty 19K (M-1 Armor Crewmember). 

3.  He served through multiple reenlistments in a variety of stateside or overseas assignments and he was promoted to SSG/E-6 on 1 November 1983.  

4.  Although not available for review with this case, it appears that on 
12 December 1989 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).  It also appears his punishment consisted of at least a reduction to SGT/E-5.  

5.  His records contain a DA Form 4187 (Personnel Action) dated 14 December 1989 that shows he was assigned to the 3rd Battalion, 70th Armor, Fort Polk, LA, and he was reduced to pay grade E-5 effective 12 December 1989 with a date of rank of 12 December 1989 by reason of Article 15, violation of Article 90 (assaulting or willfully disobeying a superior commissioned officer), UCMJ. 

6.  He retired on 30 June 1994 and he was placed on the Retired List on 1 July 1994.  He completed 20 years and 7 days of active service.  His DD Form 214 shows in: 

* Item 4a (Grade, Rate or Rank) - SGT
* Item 4b (Pay Grade) - E-5
* Item 12h (Effective Date of Pay Grade) - 89-12-12

7.  He provides:  

	a.  A résumé detailing his philosophy, objective, personal accomplishments, and affiliations. 

	b.  A letter, dated 14 May 2013, from an individual in the Salvation Army who describes the applicant as a patriot who is involved in the community. 

	c.  A letter, dated 12 May 2013, from an individual who identifies herself as the secretary of a county board of realtors.  She opines that it is sad the applicant could lose his rank due to what she describes as a vindictive wife.  She also describes the applicant as a caring and a dedicated individual and role model.  

	d.  A letter, dated 6 May 2013, from his wife who also describes him as a proud and passionate patriot who continues to support the military, the community, and other veterans.  

	e.  Multiple letters, correspondence, and notes to his former first sergeant and CSM, as well as to the Inspector General. 

	f.  Self-authored memoirs from him and his former spouse.
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.  It 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 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.

9.  Army Regulation 27-10, paragraph 3-28, describes setting aside and restoration actions.  This 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.  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." Clear injustice means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. 

10.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at the time of separation and are obtained from the Soldier's records (promotion or reduction orders).

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant accepted NJP under Article 15 of the UCMJ on 12 December 1989 for violating Article 90 of the UCMJ he was reduced to SGT/E-5.  He held this rank/grade until he retired on 30 June 1994.  There is no evidence of record that shows he was promoted back to SSG/E-6 to prior to retirement.  His reduction in rank appears to have been a natural consequence of his misconduct as determined by his commander.
2.  Although his Article 15 is not available for review with this case, this incident occurred some 25 years ago and the Board is not privy of the chain of command's rationale in punishing him.  There is no evidence in his records and he provides none to corroborate the contention that he was unjustly reduced.

3.  In any case, despite the absence of the Article 15, the ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  By his own admission, the applicant stated he declined trial by a court-martial and he appealed the punishment to the next higher commander but his appeal was denied.  It is also presumed he was provided a defense attorney.  

4.  Notwithstanding the letters of support he provided, and notwithstanding his post-service professional achievement, the applicant did not provide convincing evidence that shows the imposing commander denied him the right to bring issues related to his former spouse in his defense during the proceedings.  The argument he now presents is not sufficient to change the determination of guilt made by the commander.  His dissatisfaction with the outcome of this Article 15 does not invalidate it.  He appears to have violated the UCMJ and he was punished for it.  There is neither an error nor an injustice and there is no reason to restore his rank.

5.  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_____  ________  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)                                         AR20130015914





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015914



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1