RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            25 APRIL 2006
      DOCKET NUMBER:   AR20050008191


      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. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Jennifer Prater               |     |Chairperson          |
|     |Mr. Peter Fisher                  |     |Member               |
|     |Mr. Ronald Gant                   |     |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 that the nonjudicial punishment (NJP) imposed
against her on 26 January 2004 be set aside, that she be restored to the
pay grade of   E-6 and that the Board direct the imposing officer to
provide her with a written letter of apology.

2.  The applicant states, in effect, that the NJP was unjustly imposed
against her and that it was not properly adjudicated.  She goes on to state
that her chain of command was aware of her whereabouts at all times and
appeared to be supportive of her circumstances because her commander told
her she would be charged with ordinary leave for her time off.  However,
after her return to her duty station she was charged with being absent
without leave (AWOL) instead.

3.  The applicant provides a two-page explanation of the events in her
case; a letter from her defense counselor to the appeal authority; a copy
of the DA Form 2627 in question (Record of Proceedings under Article 15,
UCMJ); copies of sworn statements from herself, her husband, and two fellow
noncommissioned officers (NCO); a character statement from a subordinate
NCO; and correspondence to her member of Congress.

CONSIDERATION OF EVIDENCE:

1.  She enlisted in the United States Army Reserve (USAR) in Pittsburgh,
Pennsylvania, on 13 January 1983, for a period of 6 years, under the
delayed entry program (DEP).  She enlisted in the Regular Army on 4 August
1983 for a period of 4 years and training as an operating room specialist.
She remained on active duty until she was honorably released from active
duty on 2 June 1987, due to reduction in authorized strength.  She had
served 3 years and 10 months of total active service and was transferred to
a USAR Troop Program Unit (TPU) in Uniontown, Pennsylvania.  It appears
that she has remained in the USAR through continuous reenlistments and that
she was promoted to the pay grade of E-5 on 3 January 1994.  Although the
available records do not show when she was promoted to the pay grade of E-
6, they do show that in 1997, she was serving in the pay grade of E-6.

2.  On 21 January 2004, the applicant’s battalion commander advised the
applicant that he was considering whether she should be punished under
Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent
from her place of duty at Fort Dix, New Jersey, from 3 January to 10
January 2004.  The
DA Form 2627 indicates that there is a continuation sheet of the offenses;
however, the applicant has not provided it and it is not contained in her
Official Military Personnel File (OMPF).

3.  On 23 January 2004, the applicant elected not to demand trial by court-
martial and elected a closed hearing with a person to speak in her behalf.

4.  On 26 January 2004, the imposing commander imposed a reduction to the
pay grade of E-5 and directed that the DA Form 2627 be filed in the
Restricted Fiche of her OMPF.  The applicant elected to appeal the
punishment and to submit additional matters in her behalf.  One of the
documents submitted was the letter from her defense counsel contending that
she had not been proven guilty beyond a reasonable doubt.  The sworn
statement she submitted from herself to support her appeal relayed the
events that occurred, from her perspective.  She asserted that she had
stayed in contact with her unit and was not AWOL, that the first sergeant
had denied her due process rights by not having persons present at the NJP
proceedings that she had requested and further asserted that others were
not treated the same for the same offenses.  She went on to state that in
her 20+ years of service she had never had any disciplinary actions taken
against her and requested that the commander suspend the punishment and
reassign her to a different company.  She also provided other third party
statements with her appeal.

5.  On 11 February 2004, the installation commander denied her appeal.
Accordingly, she was reduced to the pay grade of E-5 effective 26 January
2004.

6.  A review of her OMPF shows that NJP has been imposed against her on at
least three other occasions, once in 1984 for disobeying a lawful order
from the charge of quarters (CQ) and for threatening to strike the CQ, once
in 1985 for altering a prescription for a controlled substance, and once in
1997 while serving in the pay grade of E-6, for failure to go to her place
of duty and for behaving with disrespect and offering violence against
three commissioned officers.

7.  Army Regulation 27-10, Military Justice, provides in pertinent part,
that the imposing commander, a successor-in-command, or the next superior
authority may, in accordance with the time prescribed in the Manual for
Courts-Martial (MCM), remit or mitigate any part or amount of the
unexecuted portion of the punishment imposed; may mitigate reduction in
grade, whether executed or unexecuted; to forfeiture of pay, may at any
time suspend probationally, any part or amount of the unexecuted portion of
the punishment imposed and may suspend probationally, a reduction in grade
or forfeiture, whether or not executed.  Nonjudicial punishment is “wholly
set aside” when the commander who imposed the punishment, a successor-in-
command, or a superior authority sets aside all punishment imposed upon an
individual under Article 15.  The basis for any set aside action is a
determination that, under all of the circumstances of the case, the
punishment has resulted in a clear injustice.  Clear injustice means that
there exists an unwaived legal or factual error which clearly and
affirmatively injured the substantial rights of the Soldier.  An example of
“clear injustice” would be the discovery of new evidence unquestionably
exculpating the Soldier.  Normally, the Soldier’s uncorroborated sworn
statement will not constitute a basis to support the setting aside of
punishment.  In cases where administrative errors resulted in incorrect
entries on the DA Form 2627, the appropriate remedy is generally an
administrative correction of the form and not a setting aside of the
punishment.

8.  Army Regulation 600-8-10, Personnel Absences, Leave and Passes,
provides, in pertinent part, that Soldiers on pass who request absence
beyond authorized pass time due to emergency or unforeseen urgent personal
reasons will be charged leave if approved by the commander.  A DA Form 31
(Request and Authority for Leave) is required and the Soldier’s signature
is also required on that form upon return to duty, if approved by the
commander.  Commanders may disapprove such requests when appropriate and
advise the Soldier of the reason and direct them to return to duty as
scheduled.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  It appears that the NJP was imposed in compliance with applicable laws,
regulations, and policies by a commander empowered to do so.  The
punishment was not disproportionate to the offense and there is no evidence
of any violations of the applicant’s rights.

3.  While the applicant has raised a series of various issues in her case,
they do not go to the heart of the issue at hand; was she absent without
authority?  While she asserts that she was in constant contact with her
detachment first sergeant and commander, she has provided insufficient
evidence to show that she was in fact granted leave for the period in
question.

4.  It is also noted that she has not provided a DA Form 31 requesting
ordinary leave for the period in question which shows that her request was
either approved or disapproved.  It is also noted that the battalion
commander was the imposing authority instead of the company commander and
there is insufficient evidence provided to corroborate the events that
occurred at the time from other individuals who were aware of the situation
regarding her absence and the instructions provided to the applicant during
the period in question, such as her platoon sergeant, detachment first
sergeant, etc.

5.  Furthermore, the applicant exercised her right of appeal to the
installation commander and provided even more evidence to support her case
and was unable to convince that commander that she was being unjustly
accused.

6.  Of particular note is the applicant’s sworn statement submitted with
her appeal to the installation commander in which she asserted that her
chain of command was out to get her and that in her 20+ years of service,
no disciplinary action had ever been taken against her; a statement that
she knew to be false and that goes to her credibility on the issues at
hand.

7.  While it was within the commander’s authority to grant her ordinary
leave for the period in question, it appears for reasons that are not
apparent in the available evidence, he chose, contrary to the applicant’s
assertion, not to do so.  The commander was well within his authority to
deny her leave for the period in question and it appears that she was
unable to convince the higher commanders that he had verbally authorized
her to remain at home on leave.

8.  Therefore, given the limited amount of information available and the
fact that the applicant was an NCO with 20+ years of service, who should
reasonably be aware of the procedures involving failure to return from an
authorized pass on time, it would be inappropriate to second-guess the
commanders who were on the ground at the time and reviewed all of the
available evidence and testimony.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JP___  ___PF __  ___RG __  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.




                                  _____Jennifer Prater_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008191                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060425                                |
|TYPE OF DISCHARGE       |N/A RC Soldier – USAR TPU not on AD     |
|DATE OF DISCHARGE       |N/A RC Soldier – USAR TPU not on AD     |
|DISCHARGE AUTHORITY     |N/A RC Soldier – USAR TPU not on AD     |
|DISCHARGE REASON        |N/A RC Soldier – USAR TPU not on AD     |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |277/NJP                                 |
|1.126.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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