IN THE CASE OF:  	  

		BOARD DATE:  18 June 2015	  

		DOCKET NUMBER:  AR20140014252 


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 from private first class (E-3) to sergeant (E-5).

2.  The applicant states due to an illness he got while he was serving during Desert Storm, he was punished for failure to repair.  He states that he could not sleep due to burning shoulders and he was unable to perform physical fitness training in the mornings.

3.  The applicant provides a self-authored, undated statement and a copy of his Army medical records.

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 22 May 1985, the applicant enlisted in the Army in the pay grade of E-1.  He completed training as a heavy construction equipment repairer.   He was promoted to pay grade E-2 on 22 November 1985, to pay grade E-3 on 1 March 1986, and to pay grade E-4 on 1 May 1987.

3.  The applicant's records show that he was reduced to pay grade E-3 on 13 February 1989.  However, the cause of this reduction is not contained in his official military personnel file.  On 13 August 1989, the applicant was again promoted to pay grade E-4.

4.  The applicant arrived in Saudi Arabia on 25 September 1990.  He departed Saudi Arabia on 13 April 1991.  He arrived in Germany on 9 November 1991. 

5.  On 1 August 1992, the applicant was promoted to pay grade E-5.

6.  While in pay grade E-5, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 9 March 1994 for failure to go to his appointed place of duty.  His punishment included a reduction to pay grade E-4.

7.  He accepted NJP on 27 June 1994 for signing a false official sworn statement and for two specifications of failure to go to his appointed place of duty.  His punishment included a reduction to pay grade E-3.

8.  The applicant provides a self-authored, undated statement in which he contends:

	a.  He was deployed to the desert from August 1990 through April 1991 and within the first week of arriving, alarms went off in his camp site indicating that something was in the air.

	b.  Two days later, he had to be hospitalized because he was very light headed due to his blood pressure being dangerously high.  He can remember seeing a halo over his head, then a few days later his shoulder and neck began to burn preventing him from getting any sleep.

	c.  When Desert Storm began, the camp to which he was assigned moved into Iraq.  During travel he came into contact with a lot of unexploded munitions.

	d.  When he returned to Fort Drum he was still having problems with sleep (insomnia) which resulted in his being late for formations and unable to perform physical fitness training.  He was demoted twice for failure to repair.

9.  The applicant provided a copy of his Army medical records which show that he was seen by doctors on numerous occasions between 22 March 1994 and 5 August 1995 after his service in Desert Storm for the following medical conditions:

* chronic fatigue
* insomnia
* shoulder pain
* general body aches
* head aches
* short term memory loss
* dizziness and lightheadedness 
* fibromyalgia

10.  Based on the foregoing conditions, he was diagnosed with hepatitis and Saudi Syndrome/Gulf War Syndrome.

11.  The applicant was honorably discharged on 6 October 1994, due to a reduction in force.  He completed 9 years, 4 months, and 15 days of net active service this period.

12.  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, of the UCMJ.  

   a.  Paragraph 3-18 contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates that Soldiers will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  It further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, request to be accompanied by a spokesperson, an open hearing and to examine available evidence. 

   b.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that 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.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

   c.  Paragraph 3-28 further states that a clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered to include his medical records.

2.  The evidence of record shows that he was initially reduced from pay 
grade E-4 to pay grade E-3 on 13 February 1989, which was prior to his service in Saudi Arabia.

3.  Although he was seen by Army medical doctors for a number of medical ailments, according to the applicable military justice regulation the basis for any set aside of an NJP action it must be determination that, under all the circumstances of the case, the punishment resulted in a clear injustice.

4.  The applicant was reduced from pay grade E-5 to pay grade E-4 on 9 March 1994, for failure to go to his appointed place of duty.  He did not accept NJP for being late for duty, he failed to go to his appointed place of duty.  He accepted NJP and was reduced from pay grade E-4 to pay grade E-3 on 27 June 1994, for signing a false official sworn statement and for two specifications of failure to go to his appointed place of duty.  Any medical condition(s) that he may have been treated for would not necessarily have been the cause of his willful signing of a false official sworn statement.

5.  During each of the NJP proceedings, the applicant had an opportunity to demand trial by court-martial and claim his innocence before an appropriate military court.  The evidence of record shows he accepted multiple NJPs throughout his military service.  The applicant has not shown an error or an injustice in the actions taken by the Army in his case.  Therefore, his 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)                                         AR20140014252



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ABCMR Record of Proceedings (cont)                                         AR20140014252



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