MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 31 October 2002
         DOCKET NUMBER: AR2002074372

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Ms. Regan K. Smith		Member
Mr. Donald P. Hupman, Jr.		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: In effect, that his original date of rank (DOR) to
staff sergeant/E-6 (SSG/E-6) be restored.

APPLICANT STATES: In effect, that he accepted nonjudicial punishment (NJP) on 9 May 2000, and his punishment included a reduction to sergeant/E-5 (SGT/E-5). He claims that upon his appeal of the punishment, the reduction was suspended for six months. He states that on 10 July 2000, the suspension of his reduction was vacated based on an allegation that he had made a false official statement in his appeal of the punishment. In the appeal, he indicated that he was promotable, although he had not been selected for promotion. This statement was considered to be a false statement by his unit commander and was used to support his vacation of the suspended reduction.

The applicant further states that he was subsequently offered NJP for making the false statement, but he refused to accept and demanded trial by court-martial. On 18 April 2001, he was acquitted of the charge by a special court-martial (SPCM). He states that he was promoted back to SSG/E-6 on 1 February 2002, after he had attended another promotion board and met the cut-off score. He states that it is his belief that his original DOR to SSG/E-6 should be restored because the basis used to reduce him was subsequently declined by a SPCM. He claims that he was acquitted of the charge that he had made a false statement, and he believes that the commander’s decision to vacate the suspension was made without legal authority, in an effort to impose punishment on him for despite his successful appeal, and therefore, it was unjust.

The applicant further comments that following the findings of the SPCM, the convening authority’s action included a dismissal notice stating that the rights privileges, and property of which the accused was deprived by virtue of the
court-martial proceedings would be restored. The basis for the court-martial proceedings was the false statement charge, and that allegation was also the basis for his suspended reduction being vacated, which resulted in his being reduced to SGT/E-5. He contends that his rank was a right, privilege, or property of which he was deprived based on the court-martial proceedings, and the reduction was never restored. He claims that it is his belief that his rank should be restored as directed by the convening authority.

The applicant concludes that circumstances surrounding his case support restoring his DOR because his reduction was not legally supportable. He claims that it was unjust, and the convening authority directed reinstatement of all his rights that were deprived him as a result of the court-martial proceedings against him. He claims that he is proud to be a soldier and noncommissioned officer (NCO), and he believes that serving his country is an honorable and proud living, and he hopes the Board will see the injustice in his case.

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

That as of the date of his application to the Board, he was serving on active duty in Europe as a SSG/E-6.

An Enlisted Record Brief (ERB) prepared on the applicant in late April 2000 confirms that on that date he was a SSG/E-6, and Section A (Qualification Data) confirms that he was not promotable to the next higher grade.

On 9 May 2000, the applicant accepted NJP for disobeying the lawful order issued by a superior NCO. His punishment for this offense was a reduction to SGT/E-5 and a forfeiture of $966.00 per month for two months.

The applicant appealed the punishment imposed, and on 30 May 2000, a judge advocate legal officer considered the applicant’s appeal and rendered the opinion that the proceedings were conducted within law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed. However, on 2 June 2000, the Commanding General (CG), Fort Knox, Kentucky, considered all matters presented in appeal and granted the appeal by suspending the reduction to SGT/E-5 until 29 November 2000.

In July 2000, the NJP suspension of reduction to SGT/E-5 was vacated by the commander who had imposed the punishment. The record does not contain the document that directed this action nor has the applicant provided a copy for the Board’s use. Further, other than the applicant’s assertion that this action was based solely on the allegation that he had made a false official statement in his NJP appeal, there is not information on file that confirms the specific reason(s) why the imposing commander elected to vacate the suspended reduction.

On 18 April 2001, a SPCM found the applicant not guilty of the charge and specification that he had made an official statement to the CG, Fort Knox, with the intent to deceive, by including the comment “Because I was an E-6 promotable, this reduction is a de-facto reduction of two enlisted grades.”

On 19 June 2001,SPCM Orders Number 3, Headquarters, United States Army Combined Arms Center and Fort Leavenworth, Fort Leavenworth, Kansas, was published and contained the action by the convening authority. This action directed that all rights, privileges, and property of which the accused was deprived by virtue of the proceedings would be restored.

In connection with the processing of this case, an advisory opinion was requested of and received from the Total Army Personnel Command (PERSCOM), Command Judge Advocate (CJA). The CJA opined that the applicant’s current DOR is legally correct and as a result PERSCOM is without authority to grant the relief requested by the applicant.
The PERSCOM CJA further opined that the applicant’s assertion that his reduction was without legal authority based on his acquittal by a SPCM is without merit. He commented that even assuming that the vacation of the suspension of his reduction was based solely on the same allegation for which he was ultimately acquitted by the SPCM, the vacation action would still have been lawful. He also stated that under the provisions of the governing regulation, when deciding whether to vacate the suspension of NJP, the commander is not bound by the formal rules of evidence before a court-martial and may consider any matter, including unsworn statements, that the commander reasonably believes to be relevant to the misconduct. There are no provisions for appealing the decision to vacate a suspension.

The PERSCOM CJA further stated that under formal rules of evidence a SPCM determined that the applicant’s guilt was not established beyond a reasonable doubt. However, this determination does not provide a legal basis to re-open the commander’s decision to vacate the suspended punishment of reduction to SGT/E-5 in the applicant’s case, which was made using all the evidence and a lesser standard of proof. Further, the suspension of the applicant’s reduction to SGT/E-5 was based on the underlying evidence of misconduct and not on the conduct of a SPCM proceeding. Therefore, correction of the applicant’s record to restore his earlier DOR is not required by law.

The PERSCOM CJA concluded his opinion by commenting that whether the Board should grant relief as a matter of equity is a policy determination within the Board’s discretion. However, he notes that the actions of the applicant’s commander are not subject to appeal, nor do they appear to be arbitrary or capricious. In his submission to the Board, the applicant admitted the indicated he was promotable in his NJP appeal, notwithstanding the fact that he had not been selected for promotion. Accordingly, even accepting the applicant’s version of the facts as correct, the actions of his commander appear lawful and appropriate.

On 27 August 2002, the applicant was provided a copy of the PERSCOM advisory opinion in order to have the opportunity to respond. To date, he has failed to reply.

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 contains guidance on NJP, Article 15, UCMJ, and Part V, MCM. Paragraph 3-25 contains guidance vacating suspended punishment. It states, in pertinent part, that the commander may vacate the suspension of punishment where it is determined that the soldier committed misconduct during the suspension period. It further states that the commander is not bound by the formal rules of evidence and may consider any matter, including unsworn statements, the commander believes to relevant to the misconduct, and there is no appeal of this action.

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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 Board notes the applicant’s contention that his original SSG/E-6 DOR should be restored because his reduction was based on actions that were illegal and unjust. It also notes that he was acquitted of the charge and specification that he made an official statement with the intent to deceive by a SPCM, and that the convening authority directed that all rights, privileges, and property of which he had been deprived by virtue of the court-martial proceedings would be restored.

2. However, after carefully considering the applicant’s assertion that the vacation of his suspended reduction unjust and accomplished without legal authority, the Board finds insufficient evidence to support these claims. The Board finds no evidence to confirm that the sole basis for the vacation of the suspended reduction to SGT was the statement referred to in the court-martial charge of which he was acquitted. In addition, the Board does not find the directive of the SPCM convening authority that all rights, privileges, and property of which he was deprived by the SPCM proceedings be restored, was applicable the vacation process.

3. The record is void of the specific facts and circumstances surrounding the vacation of the suspended reduction action pertaining to the applicant, and the applicant has failed to provide any documents or independent evidence related to this process. Therefore, lacking evidence to the contrary, the Board presumes government regularity in the suspended reduction vacation process. Further, the Board notes that a commander may vacate the suspension of punishment where it is determined that the soldier committed misconduct during the suspension period, and this action is not subject to appeal.

4. The evidence of record confirms that in his appeal of the NJP, the applicant made the statement that “because I was a E-6 promotable, this reduction is a
de facto reduction of two enlisted grades.” This statement was not supported by his ERB of April 2000, which confirms he was not in a promotable status prior to or during the NJP appeal process. Thus, the Board concurs with the PERSCOM CJA finding that, notwithstanding the outcome of the SPCM, the vacation action against the applicant was accomplished in accordance with the existing law and regulation, and was legally sufficient.

5. By regulation, a commander vacating suspended punishment is not bound by the formal rules of evidence and may consider any matter, including unsworn statements, the commander believes to relevant to the misconduct. Thus, the Board finds that the vacation action was not arbitrary and capricious and was not bound by the result of the SPCM proceedings.
6. In view of the facts of this case, the Board also finds that the vacation action did not contravene the directive of the court-martial convening authority that the rights, privileges, and property of which the applicant was deprived by virtue of the proceedings be restored. Therefore, it concludes that the requested relief is not warranted in this case.

7. 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

__CLG_ __RKS___ ___DPH__ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074372
SUFFIX
RECON
DATE BOARDED	2002/10/31
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 21	102.0700
2.
3.
4.
5.
6.