APPLICANT REQUESTS: That a record of proceedings of nonjudicial punishment (NJP) dated 2 September 1991 be set aside and that his rank and all monies taken from him be restored to him.
APPLICANT STATES: In effect, that he was forced to accept NJP in order to be able to depart Saudi Arabia with his unit. He continues by stating that although he accepts responsibility for the ammunition in his baggage, he did not intend for it to be there and was in essence unaware of its presence in his luggage. He further states that he was denied the opportunity to consult with counsel and was informed that he would have to stay in country if he elected to appeal or to demand trial by court-martial. Furthermore, his plane was leaving in less than 2 hours and that if he wanted to leave with his unit he had to accept the NJP. He contends that his overall record of service was not taken into account when the commander imposed what he (the applicant) feels is unjust punishment. He goes on to state that he questions the commanders authority to administer punishment against a National Guard soldier who is on his way home. In support of his application, he submits copies of documents that show he has been pursuing the matter since his return from Saudi Arabia.
EVIDENCE OF RECORD: The applicant's military records show:
On 2 September 1991, while stationed in Saudi Arabia on active duty as a National Guard military policeman in the pay grade of E-6, NJP was imposed against the applicant for wrongfully concealing ammunition in his baggage which was discovered during a customs inspection prior to his departure. His punishment consisted of a reduction to the pay grade of E-5 and a forfeiture of $150.00. The applicant did not appeal the punishment.
On 1 October 1991 he was honorably released from active duty and transferred back to the Kentucky Army National Guard.
The documents submitted by the applicant in support of his application include letters from the National Guard which respond to the applicants requests for congressional intervention. The letters indicate that legal assistance was made available to the applicant at the time and that the applicant declined to accept legal assistance. The letters further indicate that inasmuch as the applicant initialed and signed the record of proceedings of NJP, did not demand trial by court-martial, did not request a person to speak in his behalf, and did not appeal the punishment imposed, it appeared that the NJP was properly administered.
Army Regulation 27-10 implements the Department of Defense Reorganization Act and changes to the Manual for Courts-Martial and includes changes on matters of policy and procedure pertaining to the administration of military justice, including NJP within the Army and its components. The regulation applies to the active Army, the Army National Guard, and the USAR when either is on active duty or inactive duty for training. Chapter 3 of that regulation implements and amplifies NJP under Article 15, UCMJ. A commander may impose NJP on an individual who is affiliated with the command, unless he or she is a member of another armed force (not to be confused with the Army National Guard or the USAR).
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
2. It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies. The commander who imposed the punishment was empowered to do so. The punishment was neither disproportionate to the offense, and there is no evidence of any violation of any of the applicants rights.
3. Although the applicant would like the Board to believe that the NJP was unjust and that the offense was a simple mistake on his part, the Board takes note of the fact that the applicant was a military policeman who should be reasonably cognizant of the precautions necessary to prevent such an incident from occurring unless he intended to commit the offense. Furthermore, if he believed he was not guilty of the charge against him he could have demanded a trial by court-martial, whereby he could have asserted his innocence. As a senior NCO and military policeman he was aware of the choices available to him in connection with accepting the NJP. In the absence of evidence to the contrary, the Board must presume that he made the choices which he believed were in his own best interest.
4. In view of the foregoing, there is no basis for granting the applicants request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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