MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 7 August 2003
         DOCKET NUMBER: AR2003084808

         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. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern		Member
Ms. Mae M. Bullock		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, restoration of his rank and pay grade of sergeant first class/E-7 (SFC/E-7).

APPLICANT STATES: In effect, that he was denied the use of his chain of command, and coerced into a plea bargain for an incident that did not warrant the penalty he received. He also claims that his attorney was not prepared to handle his case. In support of his application, he submits the enclosed
self-authored statement containing his explanation of the events and his issues in the case. He also provides a statement from a retired major general, who was the Adjutant General (AG) of the Virginia Army National Guard (ARNG) at the time, and seven third-party witness statements given at the time of the incident.

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

He served in various capacities in both the active and Reserve components of the Army between the date he was inducted into the Army of the United States in 1971, and the date he was honorably discharged from the Virginia ARNG for the purpose of retirement on 31 August 1999.

The applicant’s record shows that he was promoted to SFC on 25 May 1996, and this was the highest rank he attained during his military service tenure. The record also indicates that he was reduced from SFC to staff sergeant (SSG) on
9 July 1997, due to misconduct.

On 17 March 1997, while the applicant was serving on active duty for training at Fort Bragg, North Carolina, his Officer In Charge (OIC) formally counseled him for physically striking a subordinate soldier. The OIC stated that incident occurred without provocation by the subordinate soldier, and even if the applicant had been provoked, as a senior noncommissioned officer (NCO) he did not have the right to strike anyone for any reason unless physically defending himself. The OIC stated that the subordinate soldier did not initiate nor return the battery.

The summary of counseling contained on the General Counseling Form
(DA Form 4856) prepared by the applicant’s OIC on 17 March 1997 indicates that the incident in question was witnessed by a two senior NCOs and the battery the applicant inflicted on the subordinate soldier was uncalled for. The applicant signed this form acknowledging the fact he had been counseled and he indicated that he non-concurred with its contents.

On 20 March 1997, the applicant’s battalion commander notified him that a reduction in grade action was pending against him. The commander indicated that the reason for action was the applicant’s assault of a subordinate soldier. The applicant acknowledged receipt of this notification, and he completed a statement requesting a reduction board on 19 April 1997.

On 20 April 1997, after consultation with defense counsel, the applicant completed a written statement in which he stipulated that he committed misconduct; and that said misconduct was sufficient to warrant among other things, a reduction in rank to sergeant (SGT), two ranks. The reduction board was held the same day, and it recommended that the applicant be reduced to SGT, and that the reduction from SSG to SGT be suspended for six months under outlined terms and conditions.

On 8 July 1997, the Judge Advocate (JA) of the Virginia ARNG prepared an endorsement confirming that he had reviewed the applicant’s case. He determined the reduction action on the applicant was legally sufficient and met the requirements of the governing ARNG regulation. The JA further indicated that on 20 April 1997, the applicant entered into a written stipulation that indicated he engaged in misconduct and that it warranted the reduction in grade action taken. The JA further indicated that the reduction board proceedings were held the same day and its findings were that the applicant had engaged in misconduct and should be reduced two grades, but that the reduction from staff sergeant (SSG) to sergeant (SGT) should be suspended for a period of six months. The JA advised the State AG that upon his review, he could either accept or reject the reduction board findings and recommendation.

On 9 July 1997, the AG of the State of Virginia ARNG reviewed the applicant’s case. He stated that based on his review of the reduction board proceedings, as well as the legal review completed in the case, he was directing that the applicant be reduced to SGT; however, the reduction from the grade of SSG to SGT was suspended for a period of six months under terms and conditions he outlined.

On 31 August 1999, the applicant was honorably released from active duty under the provisions of chapter 12, Army Regulation 635-200, by reason of voluntary early retirement, and concurrently discharged from the ARNG. The DD Form 214 issued to the applicant confirms that on the date of his REFRAD, he held the rank and pay grade of SSG/E-6, which is also the rank listed in his ARNG discharge orders.

On 18 July 2001, the Assistant Inspector General (AIG) of the Virginia ARNG responded to an inquiry from the applicant in regard to the adverse actions that resulted from reduction board action, the violation of his due process rights during the reduction board proceedings, and reinstatement of his formerly held rank.

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The AIG reviewed the applicant’s case and found there was no violation of his due process rights. It was further indicated that the fact he received replacement counsel was within regulatory guidelines for hearing procedures, and if he had concerns in regard to his counsel being adequately prepared to represent him, that question should have been raised at the time. Instead the record showed the applicant accepted his counsel in writing. It was further determined that the applicant did in fact commit the misconduct of striking a subordinate soldier, which was a violation of the Uniform Code of Military Justice (UCMJ), and in light of the reduction board’s action to reduce him and the legal sufficiency determination of the JA, the AIG could find no violations in policy or procedure that would warrant a reversal of the action.

In his supporting statement, the retired Virginia ARNG AG indicates that he did approve the applicant’s two grade reduction, but he adds he did not personally review the case in detail. He claims that he instead relied on the recommendation of the chief legal officer. He states that he recently read material he was provided on the case from the applicant, and he is now appalled that such harsh action was taken. He indicates that it is clear the applicant was provoked by the subordinate soldier, but more importantly a senior NCO and an officer were present who did nothing to stop the argument. He also states that he was unaware that a substitute attorney handled the applicant’s case and may not have been fully prepared. He states that had he been aware of these facts at the time, he would not have approved the reduction.

The third-party statements completed at the time all indicate that the applicant struck the applicant. The stories in regard to comments made by the subordinate soldier vary, some indicating he made comments in regard to the applicant’s wife, some that indicate he was talking about women in general and the applicant took it to mean his wife, and others that say nothing in regard to comments made. None indicate that the subordinate soldier ever physically responded to the applicant’s blows.

National Guard Regulation 600-200 contains the policy and procedures for the personnel management of enlisted soldiers of the ARNG. Chapter 6 contains enlisted promotion and reduction policies. It states, in pertinent part, that enlisted soldiers being reduced for misconduct in the rank of SGT and above may request a reduction board. Paragraph 6-47 outlines the rights of the solider concerning reduction boards. Among those stipulated rights is the right of the soldier to retain a lawyer at no expense to the government. If the soldier does not retain a lawyer, the convening authority will designate military counsel to represent the soldier. The soldier may also request a specific military counsel, who will be appointed if reasonably available.

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. The Board notes the applicant’s contentions that he was denied the use of his chain of command, he was coerced into a plea bargain, his attorney was not prepared to handle his case, and the incident that occurred did not warrant the penalty he received. However, it finds insufficient evidence to support these claims.

2. The Board also carefully considered the supporting statement from the retired Virginia State AG. While the comments contained in this statement indicate that the State AG would not have approved the reduction had he been aware of all the facts of the case, the Board does not find this retrospective thinking is sufficiently mitigating to support relief in this case.

3. The evidence of record confirms that the applicant struck a subordinate soldier and was not acting in self-defense. The third-party witness statements taken at the time of the incident all verify that the applicant struck the subordinate soldier and that the subordinate soldier did not strike the applicant either prior to or subsequent to being struck by him. The Board finds that even if the applicant was verbally provoked as he claims, his excessive response in physically assaulting the applicant was still unjustified. As a result, the Board concludes that the applicant’s misconduct warranted the subsequent reduction action.

4. Notwithstanding the applicant’s assertions to the contrary, the Board finds that the reduction process in his case was accomplished in accordance with the applicable ARNG regulation, and under the terms of his written stipulation. As evidenced by the AIG review of his case, the applicant’s due process rights were not violated. He accepted and was properly represented by the legal counsel and the Board is satisfied that all requirements of law and regulation were met and that the rights of the applicant were fully protected through the reduction process.

5. 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.

6. The applicant is advised that he may apply for advancement on the Retired List under the provisions of Title 10 of the United States Code, section 3964, when his active duty service and time on the Retired List equals 30 years. In his case, he could apply for advancement in April 2013.

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

__MB__ __TBR__ ___AO_ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084808
SUFFIX
RECON
DATE BOARDED	2003/08/
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1999/08/31
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Early Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 306	129.0400
2. 308	129.0600
3.
4.
5.
6.