IN THE CASE OF:  	  

		BOARD DATE:  11 September 2014    	  

		DOCKET NUMBER:  AR20140002308 


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, that the record of his nonjudicial punishment (NJP) be removed from his Official Military Personnel file (OMPF).

2.  The applicant, in a five-page hand-written statement that is very difficult to read, relates the following:

	a.  He was a truck driver.  He was on duty when his accident happened.  He heard a popping sound followed by the truck pulling to the right and running into the guard rail.  The truck went about 30 feet before hitting a bridge embankment.  The truck door opened and he was thrown out.  The truck turned and hit him in his lower back.  This was the last thing he remembered until he woke up.

	b.  His commanding officer was very angry.  He lost a truck and a driver.  After 60 days, he still could not sit long enough to drive.  He was given an administrative discharge due to drug abuse.

	c.  He was given physical profiles for his back problems.  He never had any back problems before the accident.

	d.  He was given NJP.  He argued that if he had been using drugs he would not have been able to drive.

	e.  He states there were two different stories.  He contends that his DA Form 348 (Equipment Operator’s Qualification Record) shows that he was in an accident on 16 May 1975.
	f.  He contends that the commanding officer destroyed all of the evidence to include motor pool records, military police reports, and hospital records.  He has been trying since 1978 to obtain his hospital and military police records.  He believes there was a cover up.

	g.  He still has a lot of pain and has been trying to get service-connection since 1998.  He is taking various medications for headaches, seizures, pain, and depression.

3.  The applicant provides copies of:

* DA Form 2-1 (Personnel Qualification Record – Part II) (page 2 only)
* DA Form 256A (Honorable Discharge Certificate) dated 11 February 1976
* Letter from the Craig Clinic to the Department of Veterans Affairs (VA) dated 21 June 2006
* VA Form 21-6789 (Deferred Rating Decision) dated 27 April l2009
* DA Form 348 for the period from 26 May 1973 to 30 June 1975
* Standard Form 539 (Abbreviated Medical Record, dated in February 1976
* Standard Form 93 (Report of Medical History) dated 13 February 1973
* Standard Form 93 dated 31 July 1975
* VA Form 21-4138 (Statement in Support of Claim) dated 27 February 2009
* VA Rating Decision, dated 2 November 2005
* VA Rating Decision, dated 12 July 2006 
* VA Rating Decision, dated 3 October 2007
* VA Rating Decision, dated 26 March 2010
* VA Supplemental Statement of the Case, dated 26 April 2010
* DA Form 3349 (Medical Condition - Physical Profile Record) dated 14 July 1975
* Operative Report (page 2 of 3) undated
* Operative Report (3 pages) dated 16 December 2010

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 13 February 1973, the applicant enlisted in the Regular Army.  He was trained as a motor transport operator and assigned for duty at Fort Meade, MD.

3.  On 8 February 1974, the applicant accepted NJP under the provisions of Article 15, UCMJ for violating Article 92 for failing to obey an order to get a haircut; and for violating Article 134 for disorderly conduct in the dayroom by throwing pillows and cans and breaking a window.

4.  The applicant’s punishment included a reduction to pay grade E-1 and 
14 days of extra duty.

5.  On 5 November 1974, the applicant was assigned for duty in the Federal Republic of Germany (FRG).  On 17 March 1975, he was advanced to specialist four, pay grade E-4.

6.  On 18 July 1975, the applicant accepted the subject NJP for operating a 2 1/2 ton truck in a reckless manner causing an accident.  His punishment, which he did not appeal, included:

* Reduction to private first class, pay grade E-3
* Forfeiture of 7 day’s pay
* 14 days restriction
* 14 days extra duty

7.  On 14 January 1976, the applicant accepted NJP for being absent without authority:

   a.  from on or about 0700 hours, 3 December to 0700 hours, 4 December 1975;
   
b.  from on or about 0700 hours, 5 December to 0700, 8 December 1975; and

c.  from on or about 0700 9 December to 15 December 1975.

8.  The applicant did not appeal the punishment, which included:

* Reduction to pay grade E-2
* Forfeiture of $100.00 pay per month for 2 months
* Extra duty for 30 days (2 hours per day)
* Restriction for 30 days

9.   On 1 February 1976, the applicant departed the FRG   He was admitted as a patient to the Medical Holding Company, Fort Leonard Wood, MO.

10.  The applicant’s DD Form 214 shows he was discharged on 11 February 1976, under the provisions of Army Regulation 635-200 (Personnel Separations) paragraph 13-5a for unfitness.  He received an honorable characterization of service and had completed 2 years, 11 months, and 29 days of creditable active duty service.

11.  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.

   a.  It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.
   
   b.  Use of NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  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.

	c.  Applications for the removal of the NJP from the OMPF based on an error or injustice will be submitted to the ABCMR.  It further states that there must be clear and compelling evidence to support removal of a properly-completed, facially-valid NJP from a Soldier's record by the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that he should not have received the subject NJP because the accident was due to mechanical failure and not because he was abusing drugs.

2.  The evidence of record confirms the applicant accepted NJP for misconduct on three occasions.  He accepted the subject NJP for reckless driving resulting in an accident that caused him serious injury to his back.

3.  His NJP proceedings were conducted in accordance with law and regulation.  There is no evidence of record and he provides no corroborating documents to show that the truck had a mechanical failure that caused the truck to run off the road.  Furthermore, he has not provided any documents other than his hand-written statement, that the commander tried to cover up the real circumstances of the truck accident.

4.  There is no clear and compelling evidence to support the applicant’s contention that his NJP was inappropriate.

5.  In view of the foregoing, 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)                                         AR20140002308





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ABCMR Record of Proceedings (cont)                                         AR20140002308



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