RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 January 2006
      DOCKET NUMBER:  AR20050005548


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr. Dale E. DeBruler              |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |Member               |

      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, in effect, that his Article 15 dated 25
February 2005 be set aside and all rights and privileges restored or, in
the alternative, that it be removed from his Official Military Personnel
File (OMPF).

2.  The applicant states he did not appeal the Article 15 at the time
because it was imposed one week before they departed Kuwait, not allowing a
reasonable time (given the circumstances) to properly prepare an appeal.
The Article 15 was imposed even though, according to the opinion of a legal
assistance counsel, there was no violation of the Uniform Code of Military
Justice (UCMJ).  His commander determined, after questioning him regarding
the content of the lanes training class held on 16 February 2004, that he
did in fact attend the class and dropped that charge.  However, his
commander felt his defense to the remaining charges amounted to semantics
and imposed punishment, although he did not specify whether the applicant
was being found guilty of one or both of those charges.

3.  The applicant states that, in reference to the count of failing to
report to guard duty, he presented a written statement by Staff Sergeant
(SSG) B___ attesting to the fact no one was given a prescribed time to
report to guard duty.  He had pulled one shift of guard duty and returned
to the barracks, where the power had gone out.  He discovered someone had
taken his cot so he went to sleep in a nearby cot.  He could not find his
squad leader or anyone in his squad to let them know what cot he moved to.
He was awakened around 4:00 a.m. by his squad leader, who told the
applicant he had been looking for the applicant earlier.  He states Article
86 requires that he know when and where his assigned place of duty was
before he can be found guilty of violating the Article.

4.  The applicant states that, with reference to the charge of disobeying
an order, Lieutenant (LT) N___ told him to hurry up and get his flak vest
and kevlar so they could leave for Camp Beuhring.  LT N___ told him he had
no time to find Sergeant (SGT) S___ (whom the applicant was told was
looking for him).  While running to his tent to retrieve those items, he
remembered he had left them in the rear of the help desk.  He started
running toward the rear of the help desk when SGT S___ called him over.
SGT S___ merely called him over to tell him LT N___ was looking for him.
The conversation lasted mere seconds when LT N___ came out and saw him
talking with SGT S___.  While it is understandable why LT N___ thought he
had disobeyed his order, the fact is that he did not.

5.  The applicant provides a memorandum, dated 15 February 2005, from
Company A, 319th Signal Battalion; the DA Form 2627 (Record of Proceedings
under Article 15, UCMJ); five DA Forms 4856 (Developmental Counseling Form)
with dates of counseling 17 February 2004, 20 January 2005, two dated
     22 January 2004, and 22 January 2005; a handwritten statement from SGT
S___; a handwritten statement from SSG B___; and a handwritten statement
from Specialist S___.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant enlisted in the U. S.
Army Reserve, apparently as a member of a troop program unit (TPU), around
April 2003.  He was ordered to active duty on or about 3 December 2003.  He
deployed to Kuwait on an unknown date.

2.  On 25 February 2005, while in Kuwait, the applicant accepted
nonjudicial punishment under Article 15, UCMJ for disobeying a lawful
command from his superior commissioned officer to retrieve his equipment
and not to talk to SGT S___ on or about 22 January 2005; for failing, on or
about 15 February 2004, to go at the time prescribed to his appointed place
of duty, to wit: 1:45 a.m. guard duty; and for failing, on or about 16
February 2004, to go at the time prescribed to his appointed place of duty,
to wit:  3:00 p.m. Lanes Training.  He was a Specialist, E-4 at the time.

3.  The applicant's punishment was a forfeiture of $376.00 pay for one
month.  The applicant did not appeal the punishment.  In item 5 of the DA
Form 2627, the commander imposing the punishment apparently initially
checked that the Article 15 was to be filed on the applicant's performance
fiche of his OMPF.  The entire entry ("I direct the original DA Form 2627
be filed in the ___Performance fiche ___Restricted fiche of the OMPF") was
then lined out.

4.  On or about 5 April 2005, the applicant was released from active duty.
He apparently is still in his TPU.  No record of the Article 15 could be
found on his automated OMPF.

5.  Army Regulation 27-10 prescribes policies and procedures pertaining to
the administration of military justice.  In pertinent part, it states a
commander will personally exercise discretion in the non-judicial process
by evaluating the case to determine whether proceedings under Article 15
should be initiated; determining whether the Soldier committed the
offense(s) when Article 15 proceedings are initiated and the Soldier does
not demand trial by court-martial; and determining the amount and nature of
any punishment if punishment is appropriate.

6.  Army Regulation 27-10 states an appeal not made within a reasonable
time may be rejected as untimely by the superior authority.  A reasonable
time will vary according to the situation; however, an appeal submitted
more than             5 calendar days after the punishment is imposed will
be presumed to be untimely unless the superior authority, in the superior
authority's sound discretion for good cause, determines it to be timely.

7.  Army Regulation 27-10 also states that, for Soldiers Specialist or
Corporal and below (prior to punishment), the original DA Form 2627 will be
filed locally in unit nonjudicial punishment files.  Such locally filed
originals will be destroyed at the end of 2 years from the date of
imposition of punishment or on the Soldier’s transfer to another general
court-martial convening authority, whichever occurs first.  For these
Soldiers, the imposing commander should annotate item 5 of the DA Form 2627
as “Not Applicable.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended he did not appeal the Article 15 because it was
imposed one week before they departed Kuwait.  Given those circumstances,
the superior authority might have given him an extension had he asked for
one (although 5 calendar days to submit an appeal is normally considered
reasonable).

2.  The applicant contended the Article 15 was imposed even though,
according to the opinion of a legal assistance counsel, there was no
violation of the UCMJ. However, the applicant does not provide evidence of
this opinion and no explanation as to why, if the opinion of his legal
assistance counsel was that no violation occurred, he did not demand trial
by court-martial.

3.  It appears the non-judicial punishment proceedings were conducted in
accordance with applicable law and regulations and the punishment imposed
was within legal limits.  In the absence of extraordinary circumstances the
Board is reluctant to substitute its judgment for that of the imposing
commander on the question of guilt.

4.  It appears the applicant's commander initially indicated the Article 15
was to be filed on the applicant's OMPF.  Although item 5 of the DA Form
2627 was not annotated exactly according to regulation (with "Not
Applicable"), item 5 was lined through and there is no evidence the Article
15 is filed on the applicant's OMPF.  The Article 15 may be filed locally
in his unit's non-judicial punishment files.  If so, it is properly filed
there and will be so until February 2007 or until he transfers to another
general court-martial convening authority, whichever is earlier.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__klw___  __ded___  __qas___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  __Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050005548                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060110                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.04                                  |
|2.                      |126.01                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]