BOARD DATE:	    8 October 2015

		DOCKET NUMBER:  AR20150002546 


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 records as follows: 

* issue a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) showing he retired in the rank/grade of sergeant first class (SFC)/E-7 vice staff sergeant (SSG)/E-6 on 30 April 1972
* back pay of the difference in pay between SFC/E-7 and SSG/E-6
* return of his seized property used in his court-martial 

2.  The applicant states:

* the Army should have corrected all his personnel records and ordered his retirement in the rank/grade of SFC/E-7
* there is no record the Army attempted to correct his vacated summary court-martial findings and monetary issues 
* he found an order, dated 14 June 1972, vacating his summary court-martial conviction; the Army did not notify him of the results of the appeal

3.  The applicant provides:

* Congressional correspondence
* Certificate of Military Service
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 31 August 1971
* DA Form 2627-2 (Record of Appellate or Other Supplementary Actions Under Article 15, UCMJ), dated 29 September 1971
* Summary Court-Martial Order Number 5, dated 14 June 1972
* DA Form 20 (Enlisted Qualification Record)
* DA Form 20B (Insert to DA Form 20)
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Multiple Enlistment Contracts

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 service records show he enlisted in the Regular Army on 12 February 1952 and he held an artillery surveyor military occupational specialty.  He served through multiple reenlistments in a variety of stateside or overseas assignments, including Korea, Europe, and Vietnam, and he was promoted to SSG/E-6 on 8 March 1962.

3.  Special Orders (SO) Number 144, issued by Headquarters, 101st Airborne Division on 16 June 1966 promoted him to SFC/E-7 (Temporary (T)) effective 16 June 1966.

4.  On 28 August 1971, he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to report to muster formation.  His punishment consisted of a forfeiture of pay for 2 months.  He appealed.  On 
29 September 1971, his appeal was partially approved in that the forfeiture of pay in excess of $100 per month for 1 month was suspended until 20 November 1971.



5.  On 18 October 1971, before a summary court-martial that convened in Korea, the applicant was arraigned and tried for violating the UCMJ, Charge I, Article 134, six specifications: 

* Specification 1, with intent to defraud, falsely pretending to have in his possession a valid Letter of Authorization (LOA) that purported to authorize him the purchase on one TV, and wrongfully obtaining from the Osan Air Force Base Exchange said TV
* Specification 2, with intent to defraud, falsely pretending to have in his possession a valid LOA that purported to authorize him the purchase of one refrigerator, and wrongfully obtaining from the Yong Son Main Exchange said refrigerator
* Specification 3, with intent to defraud, falsely pretending to have in his possession a valid LOA, that purported to authorize him the purchase of one refrigerator, and wrongfully obtaining from the Yong Son Main Exchange said refrigerator
* Specification 4, with intent to defraud, falsely pretending to have in his possession a valid LOA, that purported to authorize him the purchase of one refrigerator and one TV, and wrongfully obtaining from the Ascom Air Force Base Exchange said refrigerator and said TV
* Specification 5, with intent to defraud, falsely pretending to have in his possession a valid LOA, that purported to authorize him the purchase on one refrigerator and one TV, and wrongfully obtaining from the Osan Air Force Base Exchange said refrigerator and said TV
* Specification 6, with intent to defraud, falsely pretending to have in his possession a valid LOA, that purported to authorize him the purchase of one refrigerator, and wrongfully obtaining from the Camp Wilmedo Post Exchange said refrigerator 

6.  The court found him guilty of the charge and 5 of its 6 specifications.  The court sentenced him to a reduction to SSG/E-6 and a forfeiture of $390.00 pay per month for one month. 

7.  On 20 October 1971, the convening authority approved the sentence and ordered it executed.  The applicant was reduced to SSG/E-6, effective 18 October 1971, by authority of Summary Court-Martial Order Number 3, issued by Headquarters, 7th Battalion, 17th Field Artillery, 2nd Infantry Division.

8.  On 4 February 1972, the applicant submitted a DA Form 2339 requesting voluntary retirement effective 1 May 1972.  His request was approved. 



9.  On 29 February 1972, Headquarters, XVIII Airborne Corps, Fort Bragg, NC, published Special Orders (SO) Number 41 ordering the applicant reassigned to the U.S. Army Separation Transfer Point on 30 April 1972 for outprocessing.  It also ordered the applicant released from active duty effective 30 April 1972 and placed on the retired list in his retired rank of SSG effective 1 May 1972.

10.  The applicant retired on 30 April 1972 and was placed on the retired list on 1 May 1972.  His DD Form 214 shows in items 5a (Grade, Rate or Rank) and 4b (Pay Grade) the entries SSG and E-6 respectively and in item 6 (Date of Rank) the entry 18 October 1971.

11.  On 14 June 1972, Headquarters, Department of the Army, Washington DC, published Summary Court-Martial Order Number ordering the findings and sentence as promulgated in Summary Court-Martial Order Number 3, dated 20 October 1971, vacated and set aside with the charges dismissed.  All rights, privileges, and property of which the applicant had been deprived by virtue of the findings of guilty and the sentence so set aside were to be restored.

12.  The Defense Finance and Accounting Service confirmed the applicant is being paid retired pay at the rank of SSG. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to SFC on 16 June 1966.  He was convicted by a summary court-martial on 18 October 1971 for various infractions that ordered his reduction to SSG/E-6 and a forfeiture of pay for one month.  He then retired on 30 April 1972 and he was placed on the retired list in his retired rank/grade of SSG/E-6 on 1 May 1972. 

2.  Following his retirement, the appellate review was completed and ordered the findings and sentence vacated and set aside.  The applicant's rights, privileges, and property for which he had been deprived by virtue of the findings of guilty and the sentence were ordered restored.  However, no corrective action was taken by the Army to restore the applicant's rights and privileges.

	a.  Because he was reduced on 18 October 1971 and his reduction was set aside, he meets the criteria for full back pay and allowances at the pay grade of E-7 from 18 October 1971 (the date of reduction) to 30 April 1972 (the date of retirement).

	b.  Because he was sentenced to a forfeiture of $390.00 pay per month for 1 month and his sentence was set aside, if collection had been made, he meets the criteria to have this forfeited money reimbursed. 
	c.  Because he was sentenced to a reduction to SSG/E-6 and his sentence was set aside, his records contain errors.  He meets the criteria to have his retirement orders amended to show he was placed on the retired list in the rank/grade of SFC/E-7 effective 1 May 1972 with entitlement to back retired pay as a result of this correction and his DD Form 214 amended to show he retired in the rank/grade of SFC/E-7. 

3.  According to the court-martial order, there was no property seized from the applicant.  As such, there is nothing to correct concerning this issue. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  ___X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* amending his DD Form 214 to show his rank/grade and date of rank as SFC/E-7 and 16 June 1966 
* amending Special Orders Number 41, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, NC, on 29 February 1972 to show he was released from active duty effective 30 April 1972 and placed on the retired list in his retired rank of SFC effective 1 May 1972 with entitlement to back retired pay as a result of this correction 
* auditing his active duty pay records to determine if the forfeiture of pay of $390 was collected from his pay and reimbursing him this amount, if applicable
* auditing his active duty pay records from 18 October 1971 to 30 April 1972 and paying him back pay and allowances at the rate of E-7 as a result of this correction 



2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to return of seized property used in his court-martial.



      _________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)                                         AR20150002546



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ABCMR Record of Proceedings (cont)                                         AR20150002546



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