2. The applicant requests that the nonjudicial punishment imposed on 15 March 1994 be set aside and the record of that punishment be removed from his records.
3. The applicant states that the officer who imposed the punishment, his battalion commander, was himself engaged in misconduct at the time that the applicant received nonjudicial punishment, consequently, he (the applicant) could not have received a fair hearing.
4. The applicant states that upon appeal, the unsuspended forfeiture (of $1033.00), for one month was mitigated to $172.00 for six months, an unlawful number of months, and that the appellate authority corrected this by mitigating the punishment to a forfeiture of $516.00 a month for two months, an action which was improper and not legally sufficient.
5. The applicant received nonjudicial punishment under Article 15, UCMJ, on 15 March 1994 for assaulting his wife, and for wrongfully and without authority wearing ribbons representing the Vietnam Service Medal and the Republic of Vietnam Campaign Medal on his uniform. The applicant did not demand trial by court-martial and requested a closed hearing. The punishment imposed by his battalion commander was 45 days restriction, forfeiture of one half of one month pay for two months, one month suspended for three months, to be automatically remitted if not vacated before 14 June 1994 (Forfeiture was in the amount of $1033.00).
6. The applicant appealed this punishment, and the appellate authority mitigated the forfeiture to $172.00 per month for six months (for a total of $1032.00).
7. A memorandum from the appellate authority to the Army Enlisted Records and Evaluation Center at Fort Benjamin Harrison, states that the appeal was erroneously prorated over a six month period, that finance informed the legal office that the transaction would have to be limited to two months, and therefore the appeal was mitigated to a forfeiture of $516.00 a month for a period of two months.
8. On 22 August 1995 the applicants request to set aside his 15 March 1994 nonjudicial punishment was denied by the Commander at Fort Eustis, Virginia.
9. In the processing of this case an advisory opinion was obtained from the legal advisor to the Army Review Board Agency. That official stated that the appellate authority could only mitigate the amount of forfeiture from the first month, since the second month forfeiture was suspended by the imposing commander. Since the appellate authority mitigated the amount to be forfeited per month to $172.00 in his first appellate action, he could not subsequently increase the amount to be forfeited per month above $172.00, nor could he extend forfeitures beyond one month. The applicant is therefore entitled to relief in the amount of $860.00 ($1032.00 minus $172.00). That official continued by saying that the applicant is not entitled to relief in the removal of the nonjudicial punishment action. Except for the appellate actions, the punishment was imposed in accordance with law and regulation, and the applicant has not provided evidence to the contrary.
CONCLUSIONS:
1. The applicants nonjudicial punishment for misconduct, except for the appellate actions, is administratively correct. The applicant was afforded the opportunity to demand trial by court-martial, declined that opportunity, and agreed to accept punishment under Article 15, UCMJ. To infer that misconduct by the applicants battalion commander resulted in the applicant receiving a less than fair hearing by that official, is farfetched. The applicant has submitted neither probative evidence nor a convincing argument in support of this request.
2. Nonetheless, the appellate authority erred in his attempts to ease the applicants financial burden imposed by the forfeiture. The applicant is entitled to relief in the amount of $860.00. This conclusion is supported by the advisory opinion from the legal advisor to the Army Review Board Agency.
3. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicants records as recommended below.
RECOMMENDATION:
1. That all of the Department of the Army records related to this case be corrected by reimbursing the applicant an amount of $860.00.
2. That so much of the application as in excess of the foregoing be denied.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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