IN THE CASE OF:	  

		BOARD DATE:	  3 March 2015

		DOCKET NUMBER:  AR20140012896 


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 reinstatement of his rank/grade of specialist four (SP4)/E-4.

2.  The applicant states:

* he received an Article 15 in July 1964 for being absent without leave (AWOL) from 27 to 31 July 1965
* on 27 July 1965, he received a call from his wife that she was having problems related to her pregnancy 
* he asked his supervisor if he could change shifts around so he could take a few days to see his wife; he and the supervisor worked on the shift change and changes were flexible in their top secret facility
* upon his return, his lieutenant informed him he did not recognize the shift change and that he was AWOL; he was reduced in rank and forfeited pay, but he made up the lost days at the end of his term
* he is not looking for compensation; he wants his family to remember him as an E-4 

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) 

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.  The applicant's records show he enlisted in the Regular Army for 3 years on 5 February 1962.  He was trained in and held military occupational specialty 723.17 (Communications Center Specialist). 

3.  He served in Okinawa from on or about 9 August 1962 to on or about 16 January 1964.  He was advanced to private first class (PFC)/E-3 on 1 September 1962 and SP4/E-4 on 2 November 1963.  

4.  Upon completion of his tour, he was reassigned to the 1st Missile Battalion, 62nd Artillery, Scott Air Force Base, IL. 

5.  On 31 July 1964, his commander informed him it was his intention to impose NJP upon him for violating the UCMJ in that on or about 27 July 1964, he left his place of duty and remained AWOL without proper authority until on or about 31 July 1964.  The applicant consulted with counsel, declined trial by a court-martial, and elected not to submit matters in extenuation, mitigation, or defense.

6.  On 31 July 1964, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 27 to 31 July 1964.  His punishment consisted of a reduction from SP4/E-4 to PFC/E-3 and 14 days of restriction and extra duty.  He was advised of his right to appeal to the next higher commander but he indicated he did not wish to appeal. 

7.  On 31 July 1964, Headquarters Battery, 1st Missile Battalion, 62nd Artillery published Unit Orders Number 47 reducing him to PFC effective 31 July 1964. 


8.  He was honorably released from active duty on 8 February 1965.  His DD Form 214 shows he completed 3 years of active service and he had 4 days of lost time from 27 July to 30 July 1964.  His DD Form 214 also shows in:

* Item 3a (Grade, Rate or Rank) - PFC/E-3 (Permanent)
* Item 3b (Date of Rank) - 31 July 1964

9.  Section I (Appointments, Promotions, or Reductions) of his DA Form 24 (Service Record) show she was advanced to SP4/E-4 on 2 November 1963 and reduced to PFC/E-3 on 31 July 1964. 

10.  There is no indication in his records that shows he was promoted back to SP4/E-4 prior to his discharge.  

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.  Chapter 3 addresses the polices applicable to NJP.  It provides that commanders may impose NJP for the administration of discipline under the provisions of Article 15 of the UCMJ; however, commanders should first 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.  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.  Prompt action is essential for NJP to have the proper corrective effect.  

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 of the regulation contained guidance on the preparation of the DD Form 214.  It stated item 3a will show the active duty rank and pay grade at time of the Soldier's separation.  The rank is taken from the Soldier’s promotion/reduction orders and item 3b shows the date of rank.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to SP4/E-4 on 2 November 1963.  However, he also accepted NJP under the provisions of Article 15 of the UCMJ on 31 July 1964 that resulted in his reduction to PFC/E-3. 

2.  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.  The applicant was given the right to demand trial by court-martial and he was afforded the opportunity to appeal the Article 15 through proper channels.  He elected not to appeal his Article 15 to the next higher commander.  

3.  His NJP proceedings were conducted in accordance with law.  There is no evidence of record and he provides no evidence to show the DA Form 2627 is untrue or unjust.  Likewise, there is no evidence in his records and he provides none to show he was promoted back to SP4/E-4 between the date he was reduced (31 July 1964) and the date he was separated (8 February 1965).  His records correctly show his rank, grade, and effective date of pay grade.  He provides no evidence of an error or an injustice and as such, he is not entitled to the 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 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)                                         AR20140012896





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ABCMR Record of Proceedings (cont)                                         AR20140012896



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