RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 May 2004
      DOCKET NUMBER:   AR2003083540


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

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Robert J. McGowan             |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Mr. Ronald J. Weaver              |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that the nonjudicial punishment (NJP) he
received on 20 August 1999 be expunged from his military records and that
all rights and privileges be restored to him, including his rank and the
differential in his pay; and that the separation pay he received for his
disability separation be recalculated and paid at the correct pay rate.

2.  The applicant states that he was a Sergeant First Class (SFC/E-7) in
the Michigan Army National Guard (MIARNG).  On 20 August 1999, his Brigade
Commander imposed NJP on him under the provisions of the Section 15,
Michigan Code of Military Justice of 1980 (MCMJ) for "improperly fir[ing]
his crew serviced howitzer while in possession of and/or after ingest[ing]
alcoholic beverages, directly resulting in serious injury to another
[S]oldier."  As punishment, he was reduced to the rank of Sergeant (SGT/E-
5).

3.  The applicant provides evidence through his legal counsel (see below).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the punishment received by the applicant on 20
August 1999 be removed from his military records and that his pay account
be corrected.

2.  Counsel states that the assessment of NJP against the applicant was
accomplished in error and was unjust, in that:

      a.  The applicant was reduced two pay grades from E-7 to E-5.  Counsel
argues that such punishment, although authorized under the MCMJ, violates
Federal law.  The Uniform Code of Military Justice (UCMJ), 10 USC § 815, as
modified by Executive Order in the Manual for Courts-Martial (MCM), limits
commanders above the rank of Major to a one pay grade reduction for
enlisted personnel above the pay grade of E-4.  Michigan law requires the
MIARNG to conform to applicable acts and regulations of the United States.

      b.  The applicant received multiple punishments in violation of the
MCMJ which states that that a commander may impose one of a list of
disciplinary punishments for minor offenses.  Counsel argues that the
applicant, in addition to being reduced, was placed in "physical restraint,
correctional custody or house arrest."

      c.  The applicant's chain of command unlawfully confiscated his pay
and allowances by recouping the difference in his pay from E-7 to E-5 from
the date of recoupment to August 1999.

3.  Counsel provides a 12 December 2002 Brief in Support of Application
with the following enclosures:  DA Form 2627 (MIARNG Form 27-1), Record of
Proceedings Under Section 15, Michigan Code of Military Justice (MCMJ);
applicant's Section 15 appeal; Judge Advocate's advice letter re:  Section
15 appeal; Section 15 appeal decision; applicant's brief to Michigan
(State) Circuit Court; Michigan Circuit Court Order, dated 12 February
2001; MCMJ, Section 15 (from Michigan Compiled Laws (MCL) 32.1015); an
excerpt from the Michigan Military Act (MCL 32.503); Article 15, Uniform
Code of Military Justice (UCMJ), 10 US Code § 815; excerpt from the MCM,
paragraph 5, page V-4; excerpt from Army Regulation (AR) 28-10; excerpt
from AR 140-148; excerpt from AR 600-8-19; excerpt from JAGINST (Judge
Advocate General's Instruction) 5800.7C; excerpt from Air Force Instruction
(AFI) 51-202, Nonjudicial Punishment; applicant's discharge orders;
applicant's NGB (National Guard Bureau) Form 22; and the applicant's DD
Form 214 (Certificate of Release or Discharge From Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant was an SFC in the MIARNG serving on state active duty in
a Title 32 Active Guard Reserve (AGR) position with the 1st Battalion,
119th Field Artillery.

2.  On 8 August 1999, the applicant's unit was undergoing state annual
training at Camp Grayling, Michigan.  The training involved live-firing the
unit's Howitzers.  The applicant, as the senior noncommissioned officer
(NCO), was performing duties as Chief of Firing Battery (Chief of Smoke).

3.  The applicant's firing battery was given a three round fire mission.
The first two rounds were fired without incident.  After the gun crew
reloaded in order to fire the third round, but before the crewmember could
attach the lanyard and move clear of the gun's breech, the applicant
reached in and hand-fired, or "finger-popped" the gun.  The gun recoiled
and struck the crewmember seriously injuring him.

4.  Following the accident, the firing battery ceased operation and an
investigation was conducted.  As part of the investigative process, the
applicant was taken to the Camp Grayling Provost Marshal's Office and given
an alcohol breathalyzer test.  Test results showed that he had ingested an
alcoholic beverage.  A DA Form 3975 (Military Police Report) was completed
and the applicant was released to his unit commander.  For the remainder of
the training, he was placed under the supervision of a unit sergeant.

5.  On 20 August 1999, the applicant's brigade commander offered the
applicant NJP under Section 15, MCMJ citing the following misconduct:  "In
that [applicant], in violation of Section 134 of the Michigan Code of
Military Justice, at Camp Grayling, MI, while on orders for Annual
Training, and engaged in a training exercise, did commit negligence and
disorder to the prejudice of good order and discipline of the Michigan Army
National Guard, to wit:  did improperly fire his crew serviced howitzer
while in possession of and/or after [he] ingested alcoholic beverages,
directly resulting in serious injury to another soldier."

6.  The applicant accepted the NJP and, on 20 August 1999, the brigade
commander, a Colonel (COL/O-6), imposed a two-grade reduction to Sergeant
(SGT/E-5) as punishment.

7.  The applicant appealed his punishment to the next superior authority on
20 September 1999.  In his appeal, he stated that he did not bring alcohol
to the range, but he did drink "Range 40 Kool-Aid" provided by the mess
sergeant.  He later found out that "Range 40 Kool-Aid" was cool-aid spiked
with alcohol.  He further stated that he had no warning that he was
becoming intoxicated; that he accidentally fired the howitzer while
attempting to help the Soldier attach the lanyard; that he believed he was
having a Vietnam flashback.

8.  On 23 December 1999, the applicant's appeal was denied.  On 27 January
2000, the applicant filed an appeal with the Circuit Court for the County
of Ingham, State of Michigan.  The State Circuit Court, on 12 February
2001, dismissed the appeal for failure to exhaust all administrative
remedies.

9.  The MCMJ, in Section 15(4)(g)(iii), states that an officer in the grade
of major or above may reduce an enlisted member above grade E-4 not more
than two grades.

10.  The MCL, §32.503 (Michigan Military Act: intent, construction),
states:  "It is the intent of this act and other acts of this state
affecting the Michigan National Guard, the Michigan defense force and the
unorganized militia to conform to applicable acts and regulations of the
United states.  The laws of this state shall be construed to effect this
intent, and anything to the contrary shall be held to be null and void as
long as the subject matter shall have been acted upon by the United
States."

11.  The Manual for Courts-Martial, United States (MCM)(1998 Edition),
under subparagraph 5b(2)(B)(iv) of Section V, states:  "[E]nlisted members
in pay grades above E-4 may not be reduced more than one pay grade" by NJP
except in time of war or national emergency.

12.  In the processing of this case, an advisory opinion was obtained from
the Office of The Staff Judge Advocate (SJA), Army National Guard Bureau
which states that:  the applicant's two grade reduction was in accordance
with controlling regulatory guidance in the MCL, National Guard Regulation
600-200, and the MCMJ; that the applicant did not receive multiple
punishments in the form of correctional custody and reduction in rank; and
that the evidence considered during the applicant's Section 15 hearing
reasonably supported the finding of guilt.  The applicant was provided an
opportunity to respond to the advisory opinion, but did not do so.

DISCUSSION AND CONCLUSIONS:

1.  Applicant's counsel correctly argues that, although the applicant was
in a Title 32 State AGR duty status and not subject to the MCM, his two-
grade reduction was improper.  The laws of the State of Michigan clearly
defer to Federal law and regulation whenever the relevant state and Federal
provisions conflict.  Such a conflict exists between the MCMJ and the MCM
concerning how many pay grades an E-7 may be reduced by NJP action – the
MCMJ permits a two-grade reduction, while the MCM allows only a one-grade
reduction.

2.  While the two-grade reduction was improper, all other aspects of the
applicant's NJP proceedings were properly conducted.  The commander who
imposed NJP did not impose multiple punishments.  Immediately following the
incident at the firing range, it was the applicant's battery commander who
restricted the applicant to the unit area for the remainder of the annual
training.  This restriction was not imposed under Section 15, MCMJ.

3.  The applicant's conduct on 8 August 1999 was improper.  He consumed
alcoholic beverages while on a live-fire artillery range.  During that
time, he committed an egregious act that resulted in injury to a fellow
Soldier.  NJP was properly offered to the applicant under the MCMJ and he
accepted the NJP.  The punishment, while within the limits and guidelines
of Michigan State law, did not conform to Federal law.

4.  The applicant's date of rank to SGT/E-5 is 23 December 1999, the date
higher military authority denied his NJP appeal.  He has not shown that the
difference between SFC/E-7 and SGT/E-5 pay was recouped before that date.
If, in fact, the MIARNG did recoup the difference in pay to August 1999, it
would be an improper recoupment action.

BOARD VOTE:

__tdh___  __jea___  __rjw___  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. That insofar as records of the Michigan Army National Guard are
concerned, this Board recommends the Adjutant General of the State of
Michigan:

      a.  Void that portion of the 20 August 1999 record of NJP of the
individual concerned as relates to his reduction from SFC/E-5 to SGT/E-5;

      b.  Reduce the individual concerned from SFC/E-7 to SSG/E-6 by action
of the same 20 August 1999 record of NJP; and

      c.  Establish the effective date of rank to SSG/E-6 of the individual
concerned as 23 December 1999, the date his appeal of his NJP was denied,
and;

2.  This Board further recommends that the Adjutant General of the State of
Michigan correct any and all records, including, but not limited to:

      a.  Correct Orders 183-001, Michigan Department of Military and
Veterans Affairs, dated 2 July 2001, to show that the individual concerned
was released from Title 32 active duty and returned to the MIARNG in the
grade of SSG/E-6;

      b.  Correct the NBG Form 22 (Report of Separation and Record of
Service) of the individual concerned, issued on 16 June 2001, to show his
grade as SSG/E-6;

      c.  Correct the DD Form 214 of the individual concerned, issued on
16 June 2001, to show his grade as SSG/E-6;

      d.  Correct the pay account of the individual concerned to comply
with his effective date of rank as an SSG/E-6 (23 December 1999) and pay to
him any monies due based upon such correction; and

      e.  Recalculate disability separation pay of the individual concerned
at the rate of SSG/E-6 vice SGT/E-5 and pay to him any monies due based
upon such recalculation.

3.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
expunction of the 20 August 1999 record of NJP from his military records.




                 Thomas D. Howard, Jr.
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003083540                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20030506                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |126.0200                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |