APPLICANT REQUESTS:  In effect, the applicant requests that he be restored to the rank of staff sergeant, pay grade E-6, and retired in that grade.  

APPLICANT STATES:  That he successfully held the grade of 
E-6 until August 1992.  He had an alcohol problem, his command was aware of his problem and did nothing until he was reduced to pay grade E-4.  The purpose of the reduction was to eliminate him from the Army.

He had previously been accused of failure to pay just debts and of stealing, both of which were unfounded.  He had served faithfully for over 20 years without any problems until his last year at Fort Rucker, Alabama.  He appealed the punishment he received on both nonjudicial punishment actions, and was never informed of the results.  He was not stopped for operating a vehicle or seen operating a vehicle on 29 September 1992.  He was issued retirement orders showing his rank as staff sergeant, and was informed that that would be his retirement rank.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant had prior active and inactive service in the Marine Corps, and service the Army National Guard and Reserve prior to his enlistment in the Army on 
9 August 1977.  He has served on active duty from that date until his retirement in 1993, attaining the rank of Staff Sergeant, pay grade E-6, and completing numerous military schools and courses.  The applicant has received two awards of the Army Commendation Medal, four awards of the Army Achievement Medal, and four awards of the Good Conduct Medal, among others.  Additionally, he has received numerous certificates and letters of appreciation and commendation.
The applicant’s evaluation reports have ranged from above average to excellent and outstanding, being rated among the best on several occasions in his potential for promotion and service in positions of greater responsibility.

A service school academic evaluation report of 
6 December 1990 indicates that the applicant was released early from the AMEDD NCO Advanced Course at Fort Sam Houston, Texas for misconduct.  He reported for duty intoxicated.  The applicant received nonjudicial punishment under Article 15, UCMJ.  That report also indicates that his off duty behavior impeded the motivational and learning process of the group.

On 22 September 1992 the applicant received nonjudicial punishment for being drunk on duty and for failure to go to his place of duty.  He was reduced to pay grade E-5, required to forfeit one half of one month’s pay for two months (suspended), restricted for 45 days (suspended), and required to perform extra duty for 45 days (suspended), to be automatically remitted if not vacated before 
5 November 1992.  The applicant elected not to appeal this punishment.

On 30 September 1992 the suspension of the aforementioned punishments were vacated.  The applicant was found drunk on duty on 29 September 1992.

The applicant received nonjudicial punishment on 
2 October 1992 for operating a vehicle while drunk and for being drunk on duty.  He was reduced to pay grade E-4, among other punishments.  The applicant appealed his punishment, however, there is no record of any action taken on his appeal.

On 26 March 1993 orders were issued releasing the applicant from active duty effective 31 August 1993 and placing him on the retired list the next day.  Those orders show his retired grade of staff sergeant (pay grade E-6).  A corrected copy of those orders were issued the same date showing his retired grade as specialist (pay grade E-4). 

The applicant retired on 31 August 1993.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his retired grade as E-4.  He had 20 years and 20 days of active service.

Army Regulation 27-10 provides policy for the
administration of military justice.  Chapter 3 provides
that nonjudicial punishment is appropriate in all cases
involving minor offenses in which nonpunitive measures
are considered inadequate or inappropriate.  It is a
tool available to commanders to correct, educate and
reform offenders whom the commander determines cannot
benefit from less stringent measures; to preserve a
member'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 fewer resources than trial by
court-martial.  The imposing commander is not bound by
the formal rules of evidence before courts-martial and
may consider any matter, including unsworn statements
the commander reasonably believed to be relevant to the
case.  Furthermore, whether to impose punishment and the
nature of the punishment are the sole decisions of the
imposing commander.
  
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.  The greater part of the applicant’s service was commendable and with merit.  The applicant himself marred this service by his conduct in the latter years of his career.  The applicant has only himself to blame for his actions, which resulted in his retirement in the pay grade of E-4.
 
2.  The nonjudicial punishment actions that reduced the applicant were imposed in compliance with applicable laws, regulations and policies.  The punishments imposed was neither unjust nor disproportionate to the offenses, and there is no evidence of any substantive violation of any of the applicant's rights.  

3.  Contrary to the applicant’s contention, he did not appeal the punishment imposed on 22 September 1992.  He did appeal the punishment imposed on 2 October.  The Board notes that the applicant was released from active duty some 10 months after his appeal.  While there is no evidence of record that action was taken on his appeal, in the absence of any evidence to the contrary the presumption of regularity must be presumed.

4.  The applicant’s contention that he had no disciplinary problems until his last year of duty at Fort Rucker is contradicted by the evidence contained in the 
6 December 1990 academic evaluation report from advanced course at Fort Sam Houston.  
 
5.  The orders issuing agency erred in showing the applicant’s retired grade as staff sergeant (pay grade E-6). That error was corrected.  

6.  Careful consideration has been given to the applicant’s service prior to his misconduct, however, this service is not sufficiently mitigating to warrant the relief requested. The applicant’s irresponsible conduct merited the action taken.  He has submitted neither probative evidence nor a convincing argument in support of his request. 

7.  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.

8.  In view of the foregoing, there is no basis for granting the applicant’s 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