RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            06 APRIL 2006
      DOCKET NUMBER:   AR20060003334


      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. Paul Smith                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Brenda Koch                   |     |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 the dismissal of nonjudicial punishment (NJP)
imposed against her on 24 June 2005 and restoration to the pay grade of E-6
with entitlement to all back pay and allowances.

2.  The applicant states, in effect, that while she made a grave error and
was drinking and drunk, she didn’t hurt anyone, disrespect anyone or damage
any property.  She further states that she did not disobey orders and that
she accepted the NJP because she thought the commander would be fair and
impartial; however, this was not the case considering that she had 19 years
of good service in both the Active Army and National Guard and the fact
that she intended on returning to warrant officer candidate school.  She
continues by stating that the commander read the charges against her while
at Fort Irwin and then she departed on block leave and when she returned to
Camp Shelby he continued the proceedings.  She goes on to state that she
was not afforded due process because she was not afforded sufficient legal
counsel in a timely manner due to the unit being deployed to Kuwait.

3.  The applicant provides an unsigned memorandum from a trial defense
counsel dated 18 September 2005, a memorandum of appeal of the NJP, an
illegible document related to emergency care, an incomplete DA Form 2627
(Record of Proceedings under Article 15, UCMJ), a Counseling Statement (DA
Form 4856-E), six sworn statements (DA Form 2823) that were attached to the
NJP, leave and earnings statements in the pay grade of E-6 and E-5, and a
memo dated 24 June 2005 from legal assistance indicating that she was to
return with her packet at 1500 hours that day to have her packet reviewed
by counsel.

CONSIDERATION OF EVIDENCE:

1.  She originally enlisted in the Regular Army on 18 March 1986 and served
as a track vehicle repairer until she was honorably released from active
duty in the pay grade of E-4, on 30 March 1994, under the provisions of
Army Regulation 635-200, paragraph 16-6 and the Special Separation Benefit
(SSB) Program, due to reduction in force.  She had served 8 years and 13
days of total active service and received $18,558.72 in SSB payment
benefits.  She was transferred to a Pennsylvania Army National Guard
(PAARNG) unit as a condition of her receiving SSB benefits.  She has
remained in the National Guard through continuous reenlistments and was
promoted to the pay grade of E-6 on 12 February 1996.

2.  On 10 March 2005, orders were published which ordered the applicant to
active duty effective 12 March 2005, in support of Operation Iraqi Freedom
for a period not to exceed 490 days.  She was directed to report to Camp
Shelby, Mississippi, on 15 March 2005.

3.  On 2 June 2005, while at the National Training Center (NTC), Fort
Irwin, California, the applicant’s battalion commander notified her that he
was considering whether she should be punished under Article 15, Uniform
Code of Military Justice (UCMJ) for her misconduct on 31 May 2005 at Fort
Irwin, in which she disobeyed a direct order by consuming alcohol in
violation of 2 BCT policy, which was issued to her during in-processing to
the NTC and that she did conduct herself in a manner prejudicial to good
order and discipline in that she was publicly intoxicated.  The applicant
was advised that she had 48 hours to contact trial defense service at Fort
Irwin.

4.  On 23 June 2005, the applicant indicated that she did not demand trial
by court-martial and that she requested a close hearing.

5.  On 24 June 2005, after considering all matters in defense, mitigation
and/ or extenuation, in a closed hearing, the battalion commander imposed a
reduction to the pay grade of E-5.  The applicant elected to appeal without
submission of additional matters.  The staff judge advocate opined that the
proceedings were conducted under law and regulations and that the
punishment was appropriate. Her appeal was denied on 28 July 2005.  The
imposing commander directed that the DA Form 2627 be filed in the
restricted fiche of the applicant’s Official Military Personnel File
(OMPF); however, it is presently filed on the performance fiche of her OMPF
with no explanation as to why it is filed contrary to the imposing
commander’s directions.

6.  On 20 January 2006, a Notification of Eligibility for Retired Pay at
Age 60   (20-Year Letter) was dispatched to the applicant from the PAARNG.

7.  The 28 August 2005 appeal submitted by the applicant to the appeal
authority, though unsigned by the applicant, indicates that she did not
believe she was guilty and contended that the punishment was too harsh.
She asserted that she did not violate the policy because she was told that
no drinking was allowed within the confines of the “LSA” and was not told
that the policy prohibited all drinking, regardless of location.  She
admitted to drinking at the Fort Irwin bowling alley with other soldiers of
her unit and to getting drunk; however, she denied that she was guilty of
the offenses as charged and asserted that she had not received proper legal
counseling prior to NJP being imposed against her.

8.  The 18 September 2005 unsigned memorandum from the Trial Defense
Service counsel (Al Anbar Field Office) opines that there were errors in
the DA Form 2627 at the time it was given to the applicant and that the
applicant was never opined of the NJP process and the appeal process and
further opined that her appeal should be considered beyond the 5-day
deadline.

9.  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), may 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.

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.  The applicant was notified of the commander’s intent to impose NJP on
2 June 2005 and it was not until 23 June 2005 that he continued with the
proceedings.  Accordingly, the applicant has failed to show through the
evidence submitted with her application and the evidence of record that
there was insufficient time to consult with counsel.

4.  The applicant properly exercised her rights of appeal and was
unsuccessful in her appeal.  The applicant has provided no evidence or
extenuating circumstances to show that she was innocent of the charges
against her at the time.  Accordingly, it appears based on the available
evidence that the NJP was imposed with no violations of any of her rights
and there appears to be no basis to approve her request.

5.  Evidence shows that the applicant’s records contains an administrative
error in the filing of the DA Form 2627 in the performance OMPF, while the
imposing commander directed that it be filed in the restricted section of
the OMPF.  Therefore, she is entitled to movement of the DA Form 2627 to
the restricted section of the OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____PS _  ___CD __  ___BK __  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 and as a result, the Board
recommends that the Nation Guard Bureau correct the records of the
individual concerned to show that the DA Form 2627 dated 23 June 2005 is
filed on the restricted portion of her OMPF, as designated by the imposing
commander.







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
dismissal of nonjudicial punishment, restoration to the pay grade of E-6
and entitlement to all back pay and allowances.




                                  ______PAUL SMITH___________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060003334                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060406                                |
|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          |(GRANT-PARTIAL)                         |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |277/SET ASIDE NJP                       |
|1.126.0000              |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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