MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:



                  BOARD DATE: 30 OCTOBER 2003
                  DOCKET NUMBER: AR2003089414

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Mr. Ernest W. Lutz, Jr.		Member
Mr. Larry C. Bergquist		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 the record of nonjudicial punishment that he received under Article 15, UCMJ (Uniform Code of Military Justice) be expunged from his Official Military Personnel File (OMPF), and that he be restored to the rank of sergeant with full back pay and allowances.

APPLICANT STATES: That the charge that he disobeyed a lawful order on 25 June 2001 was untrue. He received no such order, but was told to remove the M16 brass from the back of a vehicle only on 19 July 2001 at which time he complied with the order. He provides a statement from a fellow soldier, who stated only that the applicant had told him not to worry about the brass.

The charge of dereliction of duty was untrue. He could not turn in the ammunition forecast on the due date because he was in a hazardous duty class at that time; however, he completed the forecast and showed it to his supervisor. Since he received no information otherwise, he presumed that his supervisor turned in the forecast.

The charge that he disobeyed an order to receive clearance from the G3 sergeant major prior to leaving an exercise site is untrue. He never received such an order. He provides a statement from a fellow soldier who stated that an NCO released the applicant, himself, and another soldier, and at no time were they told to report to the G3 sergeant major before being released.

The charge that he disobeyed an order to report to an NCO on 1300 hours on 26 July 2001, is true; however, there are mitigating circumstances. On the morning of 26 July 2001 he reported to his newly assigned unit, Headquarters and Headquarters Company (HHC), Aviation Brigade, met with his supervisor, and began in processing, and was told to report back to his new supervisor at 1300 hours. During lunch, his prior executive officer informed him that he was to report to the NCO at 1300 hours. He reported to his new supervisor at that time, informed her of the situation, and was released so that he could resolve the matter. He provides a statement from the Aviation Brigade Signal Officer, who was his new supervisor, supporting his statement.

He states that the lieutenant colonel who imposed his punishment was not his commanding officer. As of 26 July 2001 he was assigned to HHC, Aviation Brigade, and any recommendation for nonjudicial punishment should have been forwarded to that command.

The commander who imposed the punishment must prove each and every element of an offense beyond a reasonable doubt. The evidence he submits was insufficient to prove him guilty beyond a reasonable doubt. He accepts responsibility for not turning in the ammunition forecast; however, the punishment he was given was overly severe.
The applicant submits a copy of an extract of Army Regulation 27-10, portions of which he has highlighted, "Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt … that the soldier committed the offense(s)," and, "Unless otherwise provided by regulations of the Secretary concerned, a commander may impose nonjudicial punishment upon any military personnel of that command."

He submits a copy of a certificate showing that he completed a transportation of hazardous materials course conducted from 9-20 July 2001.

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

The applicant enlisted in the Army for four years on 23 July 1997 and has remained on continuous active duty. He completed the primary leadership development course in April 2001 and was promoted to sergeant on 4 April 2001.

On 17 July 2001 orders were published reassigning the applicant, then assigned to HHC, 25th Infantry Division, to HHC, Aviation Brigade, with a reporting date of 23 July 2001.

On 26 July 2001 the applicant was counseled by an NCO for not turning in the M16 brass as he was informed to do so, for dereliction of duty for not turning in the ammunition forecast, for disobeying a lawful order by not receiving clearance from the G3 sergeant major before leaving for the day, and for disobeying a lawful order to report to him (the NCO) at 1300 hours on 26 July 2001.

On 24 September 2001 the applicant received nonjudicial punishment for willfully disobeying a lawful order on or about 25 June 2001, for dereliction of duty on or about 10 July 2001, for willfully disobeying a lawful order on or about 25 July 2001, and for willfully disobeying a lawful order on or about 26 July 2001. He was reduced to specialist (pay grade E-4), directed to forfeit $788.00 per month for two months, suspended, to be automatically remitted if not vacated before 8 November 2001; extra duty for 45 days; and restriction to the limits of Schofield Barracks, Hawaii, suspended, to be automatically remitted if not vacated before 8 November 2001. The applicant's organization on the record of proceedings indicates that he was assigned to HHC, 25th Infantry Division. The officer imposing the punishment was the commanding officer of the 225th Forward Support Battalion, a 25th Infantry Division Support Command (DISCOM) organization. The applicant appealed, providing essentially the same information in his appeal as indicated in his statements to this Board.

On 28 September 2001 a Judge Advocate General Corps officer stated that the nonjudicial punishment proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed.
On 17 October 2001 the Commanding Officer of DISCOM denied the applicant's appeal.

The applicant received an NCO evaluation report for the period April 2001 through September 2001. That report shows that he was assigned to HHC, 25th Infantry Division. His rating officials were members of that company. The applicant signed the report on 2 April 2002.

Army Regulation 27-10, chapter 3, implements and amplifies Article 15, UCMJ, and Part V, MCM (Manual for Courts-Martial. It states, in pertinent part, that a commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment. Use of nonjudicial punishment is proper in all cases involving minor offenses in which nonpunitive measures are considered inappropriate. Nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ. Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct. A commander will personally exercise discretion in the nonjudicial process. Any commander is authorized to exercise the disciplinary powers conferred by Article 15.

The imposing commander will ensure that the soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15, UCMJ. The soldier will be informed of his rights, to include the right to remain silent, the right to counsel, the right to demand trial by court-martial in lieu of nonjudicial punishment; and the right to call witnesses, present evidence, request that he be accompanied by a spokesperson, and to request an open hearing.

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. As its name indicates, nonjudicial punishment is different from a trial by court-martial. A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied. Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence and could have argued technical matters such as the jurisdictional question. Instead he chose to have the matter settled at nonjudicial punishment.

2. The Board notes the applicant's contention that the commander who imposed his punishment was not his commanding officer at that time, as indicated by the reassignment order he furnished with his request. The Board notes, however, that the record of the proceedings show that he was assigned to HHC, 25th Infantry Division; and that an NCO evaluation report, which he signed, shows in fact that he was yet assigned to HHC, 25th Infantry Division, at least through September 2001; and therefore, under the jurisdiction of the commander who imposed the punishment.

3. Apparently, the commander imposing the punishment was in fact convinced beyond a reasonable doubt that the applicant was guilty of the offenses. The applicant had the opportunity to convince that officer otherwise, and failed to do so. Despite his contentions, he has not convinced this Board that he was unjustly treated or that his record is in error.

4. The nonjudicial punishment was imposed in compliance with applicable laws, regulations and policies. The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of his rights. The applicant has submitted neither probative evidence nor a convincing argument in support of his request to have the record of his punishment removed from his files. Consequently, there is also no reason to grant his request to restore him to the rank of sergeant with back pay and allowances.

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 that requirement.

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 __ __EWL _ __LCB __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089414
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031030
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	134.00
2.
3.
4.
5.
6.