RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 July 2006
      DOCKET NUMBER:  AR20050014974


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Mr. Jeffrey C. Redmann            |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 records be corrected to
show his rank as sergeant.

2.  The applicant states, in effect, that his reduction to the rank of
specialist was an injustice and that his former rank of sergeant should be
reinstated.  He adds, in effect, that he was under behavior health medical
attention for anxiety and high stress at the time of the incident that
resulted in his reduction in rank.  He also states that other Soldiers made
mistakes similar to the mistake that he made, but they were not punished in
a similar manner.

3.  The applicant provides 2 self-authored statements, dated 31 October
2004 and 23 March 2006; a copy of Headquarters, U.S. Army Human Resources
Command (USA HRC), Office of the Inspector General, St. Louis, Missouri,
letter, dated 31 August 2005; State of New York, Division of Military and
Naval Affairs, Administrative Support Directorate, Latham, New York,
letter, dated
26 August 2005, with enclosed personnel records pertaining to the
applicant; Department of Veterans Affairs (VA) Form 21-4142 (Authorization
and Consent to Release Information to the Department of Veterans Affairs),
pertaining to treatment of the applicant on six dates at Behavioral Health,
Fort Dix, New Jersey; Headquarters, Department of the Army, Board for
Correction of Military Records, letter, dated 15 August 2005; 6 letters of
reference from Soldiers; and
7 DA Forms 31 (Request and Authority for Leave), 2 pertaining to the
applicant and 5 pertaining to other Soldiers.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show that he enlisted in the
Army National Guard (ARNG) on 1 April 1976, served in military occupational
specialty (MOS) 36K (Wireman), and subsequently reclassified into MOS 88M
(Motor Transport Operator).  The applicant's military service records also
show that he was ordered to active duty in support of Operation Enduring
Freedom/Iraqi Freedom and served in Kuwait and Iraq from 10 April to 31
July 2003.  On
15 April 2004, the applicant was issued his Notification of Eligibility for
Retired Pay at Age 60 (Twenty-Year Letter).

2.  The applicant's military service records contain a copy of
Headquarters,
369th Corps Support Battalion, New York Army National Guard (NYARNG), New
York, New York, Orders 015-019, dated 15 January 2003.  This document shows
that the applicant was promoted to the grade of rank of Sergeant (SGT/E-5),
effective and with a date of rank (DOR) of 15 January 2003.
3.  The applicant's military service records contain a copy of a DA Form
2627 (Record of Proceedings Under Article 15, UCMJ), dated 10 June 2004.
This document shows that non-judicial punishment was imposed against the
applicant for wrongfully and falsely tampering with a DA Form 31 of another
Soldier, in words and figures, and returning the Soldier from leave when
the applicant had knowledge this was false.  This document also shows, in
pertinent part, the applicant requested a closed hearing, a person to speak
in his behalf, and that matters in defense, mitigation, and/or extenuation
were presented in person by the applicant.  This document further shows
that the applicant's commander
(i.e., colonel/pay grade O-6) indicated that in a closed hearing all
matters presented in defense, mitigation, and/or extenuation were
considered and that the applicant's punishment consisted of reduction in
grade to E-4, a forfeiture of one-fourth pay for 2 months, and restriction
and extra duty for 45 days.

4.  The DA Form 2627, dated 10 June 2004, also shows that on 3 June 2004,
the applicant appealed and submitted additional matters in his behalf.
Item 8 (I have considered the appeal and it is my opinion that:) of the
document contains the handwritten entry, "[t]he proceeding was conducted in
accordance with law and regulation and the punishments imposed were not
unjust nor disproportionate to the offense committed."  This document also
shows that on 7 June 2004, the captain serving as judge advocate signed the
document.  This document further shows that on 10 June 2004, the colonel (O-
6) in command of the applicant's unit denied the appeal and provided a copy
of the appeal action to the applicant on 18 June 2004.

5.  The applicant's military service records contain a copy of a DA Form
4187 (Personnel Action), dated 27 July 2004, subject:  Request for
Reduction.  This document shows, in pertinent part, that the colonel (O-6)
serving as Director, Military Personnel, Headquarters, NYARNG, recommended
the applicant be reduced to the grade of rank of Specialist (SPC/E-4),
effective and with a DOR of 3 June 2004.  This document also shows the
action was addressed to the Reserve Components Liaison Office, USA HRC, St.
Louis, Missouri, for approval.

6.  The applicant's military service records contain a copy of
Headquarters, USA HRC, AHRC-PDZ-RC, Alexandria, Virginia, memorandum, dated
9 August 2004, subject:  Request for Reduction - [Applicant's Name, Social
Security Number], SGT.  This document shows that the Chief, Reserve
Component Support Services Branch, approved the request for reduction of
the applicant to the grade of rank of SPC/E-4, effective 3 June 2004.


7.  The applicant's military service records contain a copy of
Headquarters, Office of the Adjutant General, Joint Force Headquarters,
Latham, New York, Orders 237-1008, dated 24 August 2004.  This document
shows that the applicant was reduced from the rank of SGT/E-5, to the rank
of SPC/E-4, for misconduct, effective and with a DOR of 3 June 2004.  This
document is authenticated by the colonel (O-6) serving as the Assistant
Adjutant General, NYARNG.

8.  The applicant's military service records contain a copy of NGB Form
22 (Report of Separation and Record of Service), with an effective date of
20 October 2004.  This document shows that the applicant was transferred to
the U.S. Army Reserve Control Group (Retired), effective 20 October 2004.
This document also shows in Item 5a (Rank) the entry "SPC", in Item 5b (Pay
Grade) the entry "E4", and in Item 5c (Date of Rank) the entry "2004 06
03."

9.  The applicant provides two self-authored statements in which he
maintains, in effect, that there is documented evidence of mental stress in
his medical records that resulted in his thought process being distracted
when he made an unintentional error on the Soldier's DA Form 31; that
mistakes on the DA Form 31 are common; and that other Soldiers making
similar mistakes were not punished.  He also offers, in effect, that he
never received any prior negative actions during his military service and
that his punishment was too severe and unfair.  The letter from the Office
of the Inspector General, USA HRC, advises the applicant that the ABCMR is
the only administrative avenue available to him concerning the rank at
which he will draw retired pay.  The documents from the State of New York,
Division of Military and Naval Affairs, Administrative Support Directorate,
in pertinent part, document the applicant's retirement points and
creditable service earned toward retirement.  The medical documents he
provides substantiate that the applicant had been a patient of Behavioral
Health Services, Fort Dix, New Jersey, since 15 October 2003; was diagnosed
with Anxiety Disorder on 25 November 2003; and that he was receiving
treatment for anxiety and elevated stress levels.  This documentation also
shows (i.e., on a
DA Form 3982 (Medical and Dental Appointment)) that the applicant had a
medical appointment on 18 December 2003 and (i.e., on a Standard Form 600
(Chronological Record of Medical Care)) that the next time the applicant
received medical treatment was on 21 June 2004.  The six letters of
reference from Soldiers that know the applicant attest to his personal and
professional traits and three of the Soldiers offer their opinion that the
applicant simply made a mistake with respect to the error on the DA Form 31
in question.  The seven DA Forms 31 the applicant provides, in pertinent
part, show several entries that appear to have been changed and/or
corrected.

10.  In the processing of this case, a staff advisory opinion was obtained
from the Chief, Promotions Branch, Office of Promotions (Reserve
Components), USA HRC, St. Louis, Missouri, dated 28 November 2005.  This
advisory opinion states that records available to that office show that the
applicant received an Article
15 on 3 June 2004 for violation of Article 134, Uniform Code of Military
Justice, and that the punishment imposed was reduction in grade to E-4, a
forfeiture of one-fourth pay for 2 months, restriction and extra duty for
45 days.  The advisory official adds that the opinion of the Office of
Promotions (Reserve Components), USA HRC, is that no error or injustice was
made in the reduction of the applicant.

11.  On 2 March 2006, a copy of the advisory opinion was furnished to the
applicant in order for him to have the opportunity to respond to its
contents.  To date, the applicant has failed to provide a response to the
advisory opinion rendered in his case.

12.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel
Management), Chapter 6 (Promotion and Reduction) prescribes policy and
procedures for advancement, promotion, lateral appointment, and reduction.
Table 6-3 (Promotion Criteria) provides, in pertinent part, that for
promotion of sergeant the promotion or convening authority is the field
grade commander of a unit authorized a commander in the rank of lieutenant
colonel (i.e., LTC/O-5) or higher.  Paragraph 6-43 (Reduction and
Restoration) of NGR 600-200 shows that, unless otherwise directed by the
regulation or the State Adjutant General, a commander who has the authority
to advance/promote a Soldier to a specific rank, also has the authority to
reduce that Soldier from that rank.  Paragraph
6-44 (Causes for Reduction) of NGR 600-200 further provides, in pertinent
part, that commanders may reduce Soldiers for misconduct and that, if
appropriate, Article 15, UCMJ, court-martial, or other provisions of State
law may be used to effect reductions for misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected
to show his retired rank as sergeant.  He also contends, in effect, that
his reduction to the rank of specialist was an injustice and that his
former rank of sergeant should be reinstated because he was under behavior
health medical attention for anxiety and high stress at the time of the
incident that resulted in his reduction in rank.  He further contends that
other Soldiers made mistakes similar to the mistake that he made, but they
were not punished in a similar manner.  However, the applicant provides
insufficient documentary evidence to support his claim.

2.  The evidence of records shows that the applicant received an Article 15
for wrongfully and falsely tampering with a DA Form 31 pertaining to
another Soldier by returning that Soldier from leave at a date and time,
which the applicant had knowledge was false.  The evidence of record also
shows the applicant had the opportunity to present matters in his defense,
mitigation, and/or extenuation; that these were considered; and that he had
the opportunity to appeal the Article 15.  The evidence of record further
shows that the punishments imposed were neither unjust nor disproportionate
to the offense committed.  Therefore, the applicant provides insufficient
documentary evidence to support his claim that his punishment was unjust or
too severe,

3.  The evidence of record shows that the applicant's reduction for
misconduct from the grade of rank of SGT/E-5 to SPC/E-4 was accomplished by
proper authority and in accordance with ARNG regulatory guidance and
procedures in effect at the time.  In view of the foregoing, the
applicant's grade of rank of SPC/E-4, with an effective date of 3 June
2004, is correct.  Therefore, the entries that are shown in Item 5a (i.e.,
SPC), 5b (i.e., E4), and 5c (i.e., 2004 06 03) of the applicant's NGB Form
22, with an effective date of 20 October 2004, are correct.

4.  There is no evidence of record, and the applicant provides no
documentary evidence, to show that his treatment for anxiety and stress
contributed to the error that he made on the DA Form 31.  The applicant's
last documented appointment (i.e., prior to the incident in question that
occurred on 6 May 2004) indicates that the applicant received medical
treatment on 18 December 2003; five months prior to the incident.  The
evidence of record also shows that the applicant did not receive medical
treatment for anxiety and stress again until
21 June 2004; more than 6 weeks after the incident.  Therefore, in view of
the foregoing, the applicant provides insufficient documentary evidence to
support his claim that his treatment for anxiety and stress contributed to
the incident which led to him receiving an Article 15 and being reduced in
rank.

5.  The applicant provides copies of DA Forms 31 that contain entries that
are changed and/or corrected by them being either written-over or lined-
out.  However, these documents alone provide insufficient documentary
evidence to show the DA Forms 31 were fraudulently altered by Soldiers with
incorrect information/entries and/or that other Soldiers were not punished
for actions similar to that which the applicant committed.  Therefore, the
applicant provides insufficient documentary evidence to support his claim
other Soldiers made errors on DA Forms 31, but were not punished in a
manner similar to how the applicant was punished for his actions.

6.  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.


BOARD VOTE:

____ ___     ______      _______  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JTM__  __JCR__    ___EEM_  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.





                                  _____John  T. Meixell_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050014974                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060727                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |20041020                                |
|DISCHARGE AUTHORITY     |NGR 600-200, Paragraph 8-27(u)          |
|DISCHARGE REASON        |Retired Reserves                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0500.0000                           |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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