RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 APRIL 2006
      DOCKET NUMBER:   AR20050009263


      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:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. John Meixell                  |     |Member               |
|     |Ms. Naomi Henderson               |     |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, the removal from his records of a
Record of Proceedings under Section 5301, Pennsylvania Code of Military
Justice (MA-SJA Form 2627) and that the punishment be set aside and all
rights, privileges and property be restored to him.

2.  The applicant states, in effect, that his commander unjustly imposed
punishment against him without his knowledge and then discharged him
shortly afterwards.  He goes on to state that the punishment was not
reviewed by the Judge Advocate and contends that the dates on the MA-SJA
Form 2627 are questionable.  He also states that he was unaware that he had
been punished and reduced until he was called back from the Individual
Ready Reserve (IRR).  He continues by stating that he does not believe that
the actions by the commander were legal.

3.  The applicant provides a copy of his nonjudicial punishment (NJP).

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Pennsylvania Army National Guard (PAARNG) on
23 February 1999 for a period of 8 years.  He entered initial active duty
(IADT) for training on 13 September 1999 and completed his training as a
light weapons infantryman at Fort Benning, Georgia.  He was honorably
released from IADT on 4 February 2000 and was returned to his PAARNG unit.
He was advanced to the pay grade of E-2 on 13 March 2000 and to the pay
grade of E-3 on 13 September 2000.

2.  On 17 December 2000, the applicant’s commander signed a MA-SJA Form
2627 indicating that he was considering imposing punishment against the
applicant under Section 5301, Pennsylvania Code of Military Justice (PCMJ),
for being absent from his unit training assembly on 3 November 2000.  He
also indicated that the applicant was scheduled for a hearing on 20 January
2001 and that his failure to show for the hearing would result in a waiver
of his rights.

3.  It appears that the applicant did not appear for the hearing and on
26 February 2001, the charge was amended to reflect his unauthorized
absence from 3 November 2000 to 26 February 2001.  His punishment consisted
of a reduction to the pay grade of E-2 and the MA-SJA Form 2627 indicates
that the applicant was not available to sign the form.  That form is filed
in the Disciplinary Section of his Official Military Personnel File (OMPF).

4.  On 2 October 2001, the applicant was discharged under honorable
conditions from the PAARNG under the provisions of National Guard
Regulation 600-200, paragraph 8-27f, due to unsatisfactory participation.
He was transferred to the United States Army Reserve (USAR) Control Group
(Annual Training).

5.  On 5 May 2005, he was ordered to active duty in support of Operation
Iraqi Freedom effective 19 June 2005.

6.  Pennsylvania Military Regulation (PMR) 27-10 implements the
Pennsylvania Code of Military Justice and acquaints personnel of the
Pennsylvania Army and Air National Guard with the procedures necessary to
insure the impartial dispensation of military justice.  Paragraph 3-7c(3)
provides, in pertinent part, that if the accused refuses to respond or
without authority is absent from the proceedings, the commander may proceed
as if no demand for trial has been made.  Paragraph 3-12 provides, in
pertinent part, that the original copy of the MA-SJA Form 2627 will be
filed in the Military Personnel Records Jacket (MPRJ) of the individual and
is to be maintained in the same manner and for the same period as Article
15 actions of the Uniform Code of Military Justice (UCMJ).  It further
provides that the Staff Judge Advocate must review the MA-SJA Form 2627 if
a Soldier appeals the punishment.

7.  Army Regulation 27-10, Military Justice, provides, in pertinent part,
that the original DA Form 2627 (Record of Proceedings Under Article 15,
UCMJ) for Soldiers E-4 and below will be filed locally in unit NJP 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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence of record suggests that the applicant’s
commander notified him on 17 December 2000 that he was scheduled for a
hearing on 20 January 2001 to determine if punishment should be imposed
against him under Section 5301, PCMJ, for being absent without authority.
He was also informed that his failure to attend that hearing would
constitute a waiver of his rights.

2.  It also appears that not only did he not attend the hearing, he also
continued to be absent from his unit through 25 February 2001, when the
commander imposed the punishment.  Apparently, the applicant continued to
miss his drills because he was discharged with a general discharge in
October 2001.

3.  Therefore, it appears that the commander acted within his authority
under the applicable regulations when he imposed the punishment in the
applicant’s absence.  Accordingly, it would not be appropriate to second
guess the commander on the ground at the time as to whether the punishment
was appropriate under the circumstances.

4.  However, the applicable regulation provides that the MA-SJA Form 2627
imposing the punishment will be filed in the same manner as punishment
under Article 15, UCMJ.  In the applicant’s case, the MA-SJA Form 2627
should have been filed in local unit NJP files for a period of 2 years or
until his departure from the unit, which in the applicant’s case occurred
first.

5.  Accordingly, the MA SJA Form 2627 dated 26 February 2001 is improperly
filed in the applicant’s OMPF and therefore should be immediately removed.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___LE  __  ___JM __  ___NH __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by removing the MA-SJA Form 2627 (Record of
Proceedings Under Section 5301, PCMJ) dated 26 February 2001 from his OMPF.


2.  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
setting aside the punishment imposed against him and restoring all rights,
privileges and property to him.



                                  _____Lester Echols_______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050009263                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060427                                |
|TYPE OF DISCHARGE       |N/A RC Soldier on AD                    |
|DATE OF DISCHARGE       |N/A RC Soldier on AD                    |
|DISCHARGE AUTHORITY     |N/A RC Soldier on AD                    |
|DISCHARGE REASON        |N/A RC Soldier on AD                    |
|BOARD DECISION          |(PARTIAL GRANT)                         |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |281/EXP REC                             |
|1.126.0400              |                                        |
|2.126.0100              |278/IMP FILED                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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