MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 9 July 2002
         DOCKET NUMBER: AR2002069507

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Thomas B. Redfern, III		Member
Mr. Roger W. Able		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That he be restored to the rank of staff sergeant (SSG).

APPLICANT STATES: In effect, that he was unjustly reduced from the rank of SSG, to the rank of sergeant (SGT) by an administrative reduction board that was conducted in violation of Army Regulation 600-8-19, paragraph 7-3, in that it was not conducted within 30 duty days after receipt of documentary evidence.

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

He enlisted in Nashville, Tennessee, on 18 October 1984 for a period of 3 years and training as an armor crewman. He has remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-5 on 6 October 1987 and to the pay grade of E-6 on 1 September 1991.

On 13 March 2001, the applicant’s commanding general (CG) issued him a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence (DUI) of alcohol on 10 September 2000, as depicted in a military police (MP) report dated 8 March 2001. The GOMOR indicated that it was the intent of the CG to place the GOMOR in the applicant’s performance fiche of his Official Military Personnel File (OMPF); however, he would consider any matters the applicant or his chain of command desired to present before making his final decision. The applicant elected not to submit matters in his own behalf and the GOMOR was directed for filing in the applicant’s OMPF on 25 May 2001.

On 29 May 2001, the applicant was formally notified that he was required to appear before an administrative reduction board, to determine if he should be administratively reduced in grade for the DUI he received in September 2000.

On 22 June 2001, the regimental commander (a colonel) issued a memorandum for the reduction board, in which he authorized an extension of the 30-duty day limitation to conduct a reduction board. He indicated in the memorandum that given the time it took to gather information regarding the applicant’s misconduct, the OPTEMPO of the unit, and the absence of key leaders, there was good cause for an extension.

The reduction board proceedings are not present in the available records nor has the applicant provided a copy. However, the available evidence shows that on 19 July 2001, the Administrative Reduction Board recommended that the applicant be reduced to the rank of SGT. The regimental commander approved the recommendation and reduced the applicant to the rank of SGT, effective 24 July 2001.

With the assistance of counsel, the applicant submitted an appeal of the reduction action contending that the board was not lawfully convened. He contended that because it was not convened within 30 duty days, as required by the governing regulation and because he had not waived that provision, the board was illegally conducted. His counsel contended that the 30-day clock started on 6 March 2001, the date of the MP report; however, it did not actually occur until 58 duty days later. He went on to state that the applicant was arrested by civil authorities on 10 September 2000, and within 24 hours he notified his chain of command of the arrest. On 8 January 2001, he pled guilty to the charge of DUI and again notified his chain of command within 24 hours. On 13 March 2001, he received a GOMOR, based on the information contained in the MP Report and it was not until 29 May 2001 that he was notified that a reduction board would be convened. A motion to dismiss the proceedings was denied by the board president after the regimental commander provided a written justification of “good cause.” Counsel contended that reasons of “good cause” were unfounded and without merit.

On 24 October 2001, a review was conducted by the local staff judge advocate’s (SJA) office, which determined that the proceedings were conducted in accordance with law and regulations and that the punishment was neither unjust nor disproportionate to the offenses committed. The reviewing officer opined that the applicant’s appeal was without merit because the governing regulation required that no action be taken to conduct a reduction board until such time as documents are received that establish a sentence or a finding of guilty. Once such documents are received, a board will be convened within 30 duty days. The MP report did not establish a sentence nor did it establish a date of sentencing. Accordingly, the unit delayed initiation of the board action until such time as they received documentation of the conviction. Additionally, the regulation allows the reduction authority to extend the 30 duty-day limitation for good cause, which the commander elected to do. Lastly, any delays involved worked to the advantage of the applicant because no witnesses were unavailable because of the delay, it afforded him more time to establish a defense, and it allowed him to collect SSG pay for a longer period of time. Therefore, if there were any errors, they were harmless to the applicant. The SJA recommended that the CG deny the applicant’s appeal. On 26 October 2001, the CG denied the applicant’s appeal.

Army Regulation 600-8-19 serves as the authority for the reduction of enlisted personnel. It provides, in pertinent part, that a soldier serving in the pay grade of E-5 or higher, who is convicted by a civil court, will be considered for reduction in grade by a duly appointed reduction board. On receipt of documents establishing a sentence (imposed or vacation of a suspended sentence) or a finding of guilty with sentence to be established at a later date, a reduction board will be held within 30 duty days unless the individual concerned waives it in writing or the reduction authority establishes good cause for a delay in writing.
Army Regulation 15-185 serves as the authority governing the operation of the Army Board for Correction of Military Records. It provides, in pertinent part, that the Board is not an investigative body and that the burden of proof in any application rests with the applicant. While the Board may, at its discretion, request additional information, the responsibility to provide evidence to support an application rests solely with the applicant.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. Although the Board does not have the benefit of reviewing the administrative reduction board proceedings in this case, the available evidence shows that the reduction authority approved a delay in the proceedings for a variety of reasons. While the applicant may not agree that the delay was for good cause, the Board finds that the reduction authority was within his authority to establish the reasons he cited as good cause. In doing so, the Board sees no harm done to the applicant by delaying the board action.

2. The Board agrees with the legal review conducted in this case regarding the applicant’s contention that the 30 duty day clock began when the MP report was published. The MP report does not establish a sentence or a finding of guilty, either of which would have been sufficient had it been there. While the Board cannot determine, based on the available evidence, what document was used to initiate reduction board proceedings, it must be presumed, in the absence of evidence to the contrary and given the legal review conducted at the time, that the document used was one which established a sentence or a finding of guilty.

3. Therefore, in the absence of evidence to the contrary, the Board must presume that the proceedings were conducted in accordance with the applicable regulations, with no violations of any of the applicant’s rights. Likewise, given the available information in this case, the punishment he received was not disproportionate to the offense he committed.

4. 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 this requirement.

5. 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

__jhl____ ____tbr__ ___rwa__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002069507
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/07/09
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 327	133.0500/ADM RED IN GRD
2.
3.
4.
5.
6.