IN THE CASE OF:  	  

		BOARD DATE:  4 December 2014	  

		DOCKET NUMBER:  AR20140005824 


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 restoration of his rank/pay grade to staff sergeant (SSG)/E-6.

2.  The applicant states he received a field grade Article 15 while on active duty.  For expediency and after consulting a staff judge advocate attorney he agreed to accept the Article 15.  The charge was unfounded.  The punishment was too severe.  This was the one and only instance of his receiving non-judicial punishment.  After transferring to the U.S. Army Reserve (USAR) he retired in 1996.  During that period of service the Article 15 was expunged from his official military personnel file (OMPF) without his knowledge.  Since the Article 15 was expunged there is no offense or punishment so there is no justification for the reduction in rank.

3.  The applicant provides:

* a DD Form 214 (Report of Separation from Active Duty) with an effective date of 13 January 1977 
* a DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 7 May 1984
* certificate showing award of the Army Commendation Medal
* certificate showing he was transferred to the Retired Reserve


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 1 October 1973, he enlisted in the Regular Army (RA).  

3.  On 24 June 1974, he accepted nonjudicial punishment (NJP) for willfully and wrongfully damaging by cutting with a sharp instrument a tire, of a value of about $45.00.

4.  He was promoted to sergeant (SGT)/pay grade E-5 on 27 February 1976.

5.  On 14 January 1977, he immediately reenlisted for 6 years.  He was promoted to SSG on 21 June 1980.

6.  On 22 March 1982, he was reduced to SGT.  On 28 December 1982, he requested a waiver of disqualification for reenlistment.  The disqualification was a field grade Article 15 on 22 March 1982 for violation of Article 92 of the Uniform Code of Military Justice (UCMJ).  His punishment included reduction to E-5.  The DA Form 2627 (Record of Proceedings under Article 15, UCMJ) and details of this Article 15 are not in the applicant's OMPF.

7.  On 6 January 1983, his request for waiver was approved for extension only and was not to exceed 16 months.  On 12 January 1983, he extended his enlistment for 16 months.

8.  On 7 May 1984, he was discharged by reason of the expiration of his term of service.  His DD Form 214 shows his rank and pay grade as SGT and E-5.  The effective date of his pay grade is shown as 22 March 1982.

9.  On 4 May 1984, he enlisted in the USAR in pay grade E-5.  He immediately reenlisted in the USAR on 18 March 1990 and 28 January 1996.  

10.  On 11 December 1996, he was notified that having completed the required years of service, he would be eligible for retired pay on application at age 60 in accordance with the provision of Title 10 U.S. Code, chapter 1223 (20-year letter).

11.  The certificate he provided indicates he transferred to the Retired Reserve on 27 January 1999 in the rank of SGT.

12.  On 14 January 2014, he submitted an application to ABCMR to expunge his Article 15 from his record and restoration of his rank to SSG.  On 18 March 2014, the Case Management Division (CMD), Army Review Boards Agency (ARBA) advised him the Article 15 was not located in his OMPF.

13.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the non-judicial punishment process by:

		(1)  evaluating the case to determine whether proceedings under Article 15 should be initiated;

		(2)  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and

		(3)  determining the amount and nature of any punishment, if punishment is appropriate.

	b.  Setting aside and restoration 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.  Nonjudicial punishment 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.

	c.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action.

DISCUSSION AND CONCLUSIONS:

1.  He contends he only received one NJP during his military career.  However, his OMPF contains an NJP that he received in 1974 and evidence that he received a second NJP in 1982.

2.  While the CMD, ARBA previously advised him the record of the NJP for
22 March 1982 was not located in his OMPF, they did not say it was expunged.  He was merely advised it wasn't there.  This could be because it was not filed correctly in 1982 or it was not properly filed when he changed components from the RA to the USAR in 1984.  

3.  The record of NJP for 22 March 1982 is not in his OMPF.  However, there is no evidence to show this NJP was expunged from his record.  He was discharged from the RA on 7 May 1984 in the rank of SGT with a date of rank of 22 March 1982.  He enlisted in the USAR in the rank of SGT on 4 May 1984 and transferred to the Retired Reserve in the rank of SGT on 27 February 1999.  The fact that the record of NJP is not now located in his OMPF is not a basis to restore his rank to SSG.  

4.  He had been promoted to SSG, a position of authority and responsibility.  In promoting him to SSG, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a SSG, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  He violated this special trust and confidence when he violated Article 92 of the UCMJ.

5.  Although the details of the NJP imposed on 22 March 1982 are not available, it is reasonable to conclude the officer imposing the applicant's NJP exercised discretion in the NJP process for the applicant's offense.  Therefore, it is reasonable to conclude the officer considered any mitigating factors and factors raised to cast doubt on the applicant's guilt.  The ABCMR presumes the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt.  

6.  In view of the above, there is no basis on which to restore his rank to SSG.




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)                                         AR20140005824



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ABCMR Record of Proceedings (cont)                                         AR20140005824



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