RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        16 October 2007
      DOCKET NUMBER:  AR20070001779


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. John E. Anderholm             |     |Member               |
|     |Mr. Joe R. Schroeder              |     |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 DA Forms 2627 (Record of
Proceedings Under Article 15, UCMJ), dated 12 August 2003 and 9 September
2003, be removed from his Official Military Personnel File (OMPF); that his
rank of sergeant (SGT) be restored; that the $1974.00 taken from his pay be
refunded; that his 30 September 2005 discharge from the United States Army
Reserve (USAR) be revoked; that he be issued an antedated enlistment
contract that will allow his medical processing through the Army Physical
Disability Evaluation System (PDES); and that any SGLI debt incurred as a
result of approval of this action be forgiven.

2.  The applicant states, in effect, that after serving in the USAR in
various capacities between 1982 and 2003, and having served in military
occupational specialty (MOS) 42A (Human Resources Specialist), he
transferred into a Troop Program Unit (TPU) in February 2003.  In
conjunction with this assignment, he volunteered to be trained in MOS 91W
(Health Care Specialist) based on the needs of the Army and the unit.  He
claims that while attending MOS training at Fort Sam Houston, Texas, he was
unfairly treated, which resulted in his early discharge.  He claims he was
academically dropped from the 91W course and was subsequently unfairly used
as a detail Soldier instead of reentering the next MOS 91W course.

3.  The applicant further claims that after injuring his back during
physical training, his active duty chain of command treated him unfairly
and requested he be extended on active duty because he had been reenrolled
in the next class; however, he was never made aware of his reenrollment in
the 91W course.  He states that after returning home, he attempted to
obtain treatment for his back injury, but was informed his medical records
had been lost at Fort Sam Houston. He states he was finally able to receive
the final approval of his Line of Duty (LOD) investigation in June 2006,
even though the LOD had been approved in 2003, and has since obtained some
treatment for his back injury.  He claims that had his unit helped him, he
could have had a medical board when he returned to the unit, and some of
these issues may have surfaced and resolved; however, he did not receive
assistance from his unit and was discharged 3 months before his expiration
of term of service (ETS).  He concludes by stating that he feels justified
in requesting correction of his record because had he been treated more
fairly, none of these things would have happened and he would still be in
good health and serving as a Soldier in the USAR.

4.  The applicant provides the following documents in support of his
application:  Self-Authored Statement; Report of Medical Examination (DD
Form 2808), dated 29 May 2003; Report of Medical History (DD Form 2807-1),
dated 29 May 2003; Clinical Record (SF 507), dated 8 May 2003; FEDS HEAL
Memorandum for Unit Commander/Command Surgeon), dated 27 May 2003, and
associated medical documents; Third-Party Statement, dated 4 August 2003;
Active Duty Orders and Amendments, dated 2 May 2003, 21 October 2003, 26
November 2003, 4 December 2003, and 15 January 2004; and DA Forms 2627,
dated 12 August 2003 and 9 September 2003.

CONSIDERATION OF EVIDENCE:

1.  On 17 July 1982, the applicant initially enlisted in the United States
Army Reserve (USAR) for six years.  He was initially trained in and awarded
MOS 75B (Unit Personnel Specialist), which was later converted to MOS 42A.


2.  On 2 May 2003, 99th Regional Support Command Orders Number 049731
ordered the applicant to active duty on 16 May 2003, to attend the MOS 91W
course at Fort Sam Houston, Texas.

3.  On 29 May 2003, the applicant underwent a retention examination.  The
Report of Medical Examination (DD Form 2808) and associated documents on
file in his OMPF confirm he was found medically fit for retention.  His
OMPF is void of any documents indicating that he was suffering from a
disabling medical condition at anytime prior to his discharge.

4.  On 11 August 2003, while he was serving as a sergeant (SGT) and
attending the 91W course at Fort Sam Houston, Texas, the applicant was
notified that his battalion commander was considering whether he should be
punished under Article 15 of the Uniform Code of Military Justice (UCMJ)
for being drunk, which conduct was of a nature to bring discredit upon the
Armed Forces, on or about
21 July 2003.

5.  On 12 August 2003, the applicant elected not to demand a trial by
court-martial, and instead chose for the matter to be handled by his
battalion  commander at an open hearing and he requested a person to speak
on his behalf and indicated he would present matters in defense,
mitigation, and/or extenuation in person.  Subsequent to the hearing, the
applicant’s battalion commander imposed the following punishment on the
applicant: reduction to specialist (SPC); forfeiture of $912.00 per month
for two months; and 45 days of restriction and extra duty.  The battalion
commander directed the DA Form 2627 be filed in the performance portion of
the applicant's OMPF.  The applicant appealed the punishment and submitted
additional matters on 12 August 2003.
6.  On 18 August 2003, a Judge Advocate General (JAG) attorney considered
the applicant's appeal and opined that the proceedings were conducted in
accordance with law and regulation and the punishments imposed were not
unjust or disproportional to the offense committed.

7.  On 22 August 2003, the appellate authority, the applicant's Brigade
Commander, after considering all matters presented in appeal, denied the
applicant's appeal.

8.  The DA Form 2627 in question for 9 September 2003 is not on file in the
applicant's OMPF because his grade at the time did not allow for OMPF
filing.  The copy provided by the applicant shows that on 2 September 2003,
he was notified that his battalion commander was considering whether he
should be punished under Article 15 of the UCMJ for failing to go to his
appointed place of duty at the prescribed time on or about 15 August 2003
and for an unknown offense contained on a continuation sheet that was not
provided by the applicant.

9.  On 8 September 2003, the applicant elected not to demand a trial by
court-martial, and instead chose for the matter to be handled by his
battalion  commander at a closed hearing.  The applicant did not request a
person to speak on his behalf and indicated he would present matters in
defense, mitigation, and/or extenuation in person.

10.  On 9 September 2003, subsequent to the hearing, the applicant’s
battalion commander imposed the following punishment on the applicant:
reduction to private/E-1; forfeiture of $574.00 per month for two months;
and 45 days of restriction and extra duty.  The applicant elected not to
appeal the punishment.

11.  The applicant's OMPF is void of an active duty separation document
(DD Form 214) from the period of active duty service in question, and one
has not been provided by the applicant.  His record does contain a
Chronological Statement of Retirement Points (ARPC-249-2-E), which shows he
was released from active duty on or about 16 July 2004.

12.  Headquarters, Army Reserve Medical Command, Pinellas Park, Florida,
Orders Number 06-087-00006, dated 28 March 2006, directed the applicant's
honorable discharge from the USAR, effective 30 September 2005.

13.  During the processing of this case, an advisory opinion was obtained
from the United States Army Reserve Command (USARC) Deputy Chief of Staff,
G-1, who recommends granting the applicant relief.  This official indicates
that based on information provided by the applicant, it appears the
punishment imposed by the 12 July 2003 was excessive and that the applicant
would not have received the second Article 15 had he not been placed on
extra duty at the same time as his classes.

14.  The USARC G-1 further indicates that since the applicant was not
attending classes, he should not have been extended on active duty beyond
10 September 2003, the date authorized in his orders.  She further states
that when the applicant returned to his USAR unit, he began attempts to
locate his medical records and was informed they were not returned to his
unit from Fort Sam Houston.  In June 2006, as a result of a Congressional
Inquiry, the line of duty (LOD) investigation was approved.  She states
that the applicant's allegation that he was discharged prior to his
expiration of term of service (ETS) is correct, and upon his return to his
USAR unit, no medical evaluation board was scheduled even though the
applicant had a profile and LOD indicating service connected injuries.  She
finally requests the applicant's discharge be revoked and an antedated
contract be approved to allow the applicant enough time for the appropriate
medical evaluation.  If this contract is approved, the applicant's ETS will
be 2 December 2008.  On 23 April 2007, the applicant concurred with this
advisory opinion.

15.  The applicant provides a third-party statement from another Soldier.
This individual states, in effect, that another Soldier in the formation of
21 July 2003 smelled of alcohol and not the applicant.  He further
indicates that anyone in the vicinity of the Soldier that did reek of
alcohol could easily have wrongly been accused of drinking alcohol prior to
this formation due to the wind on that day.

16.  Army Regulation 27-10 (Military Justice) prescribes the policies and
procedures pertaining to the administration of military justice.  Chapter 3
implements and amplifies Article 15, UCMJ, and Part V, MCM.  Paragraph 3-28
contains guidance on setting aside punishment and restoring rights,
privileges, or property affected by the portion of the punishment set
aside.  It states, in pertinent part, that the basis for any set aside
action is a determination that, under all 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 that 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, a Soldier's uncorroborated sworn
statement will not constitute a basis to support the setting aside of
punishment.
17.  Paragraph 3-37b(2) states, in pertinent part, that for Soldiers in the
ranks of SGT and above the original DA Form 2627 will be sent to the
appropriate custodian for filing in the OMPF.  The decision to file the
original DA Form 2627 in the performance or restricted portion of the OMPF
will be made by the imposing commander at the time punishment is imposed.
The filing decision of the imposing commander is final subject to review by
superior authority.

18.  Paragraph 3-43 of the military justice regulation contains guidance on
the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It
states, in pertinent part, applications for removal of an Article 15 from
the OMPF based on an error or injustice will be made to the Army Board for
Correction of Military Records (ABCMR).  It further indicates that there
must be clear and compelling evidence to support the removal of a properly
completed, facially valid DA Form 2627 from a Soldier’s record by the
ABCMR.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement,
or Separation) establishes the Army Physical Disability Evaluation System
(PDES) and sets forth policies, responsibilities, and procedures that apply
in determining whether a Soldier is unfit because of physical disability to
reasonably perform the duties of his or her office, grade, rank, or rating.
 In each case, it is necessary to compare the nature and degree of physical
disability present with the requirements of the duties the Soldier
reasonably may be expected to perform because of his or her office, grade,
rank, or rating.  Separation by reason of disability requires processing
through the PDES.

20.  Chapter 4 of the same regulation contains guidance on processing
through the PDES, which includes the convening of a MEB to document a
Soldier's medical status and duty limitations insofar as duty is affected
by the soldier's status.  If the MEB determines a Soldier does not meet
retention standards, the case will be referred to a PEB.  The PEB evaluates
all cases of physical disability equitably for the Soldier and the Army.
It also investigates the nature, cause, degree of severity, and probable
permanency of the disability of soldiers whose cases are referred to the
board.  It also evaluates the physical condition of the Soldier against the
physical requirements of the Soldier's particular office, grade, rank, or
rating.  Finally, it makes findings and recommendations required by law to
establish the eligibility of a Soldier to be separated or retired because
of physical disability.

21.  Title 38, United States Code, sections 1110 and 1131, permits the VA
to award compensation for a medical condition which was incurred in or
aggravated by active military service.  The VA, however, is not required by
law to determine medical unfitness for further military service.  The VA,
in accordance with its own policies and regulations, awards compensation
solely on the basis that a medical condition exists and that said medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  The VA can evaluate a veteran throughout his
lifetime, adjusting the percentage of disability based upon that agency's
examinations and findings.  However, these changes do not call into
question the application of the fitness standards and the disability
ratings assigned by proper military medical authorities during the
applicant’s processing through the Army PDES.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the punishment imposed by the two
Article 15's in question should be set aside and the 12 July 2003 DA Form
2627 removed from his OMPF and the third-party statement he submitted were
carefully considered.  However, by regulation, before finding a Soldier
guilty during Article 15 proceedings, the commander must be convinced
beyond a reasonable doubt that the Soldier committed an offense.

2.  The evidence of record confirms that in connection with the 12 July
2003 Article 15, the applicant waived his right to a trial by court-martial
and opted for a closed hearing.  He was provided the opportunity and
presented matters in rebuttal at the hearing, and after considering the
available evidence, the battalion commander found him guilty of the alleged
misconduct.  The Article 15 was reviewed by a JAG attorney who opined the
proceedings had been conducted in accordance with the law and regulation,
and that the punishment imposed was not unjust or disproportionate to the
offense committed.

3.  The evidence of record also confirms that in connection with the 9
September 2003 Article 15 action, the applicant again waived his right to a
trial by
court-martial and opted for an open hearing.  He was afforded the
opportunity to present matters in rebuttal for consideration and after
evaluating the evidence, the battalion commander found him guilty of the
alleged misconduct.  The applicant elected not to appeal this NJP action.

4.  The Article 15 regulatory standard required the imposing commander to
be convinced beyond a reasonable doubt before he found the applicant
committed the offenses in question.  This is the same high standard
required of
courts-martial panels and judges sitting alone as triers of fact prior to
entering findings of guilt.  The evidence of record shows the Article 15
actions in question were accomplished in accordance with the applicable law
and regulation.  All requirements of law and regulation were met and the
rights of the applicant were fully protected throughout the Article 15
processes.

5.  There is no evidence of record or independent evidence provided by the
applicant that unquestionably exculpates him of the offenses for which he
received the NJP actions in question.  Therefore, there is insufficient
evidence to satisfy the clear injustice regulatory standard necessary to
support setting aside NJP.  Further, absent clear and compelling evidence
of error or injustice, there is also an insufficient evidentiary basis to
support a recommendation for removal of the 12 July 2003 DA Form 2627 from
his OMPF by this Board, or to restore the applicant's rank to sergeant.

6.  Notwithstanding the recommendation of the USARC G-1, the medical
evidence provided by the applicant and the medical evidence on file give no
indication that the back injury the applicant claims to have suffered while
on active duty disqualified him from retention/separation or supported his
separation processing through medical channels prior to his release from
active duty, or his discharge from the USAR.  Disability ratings and
compensation for service connected disabilities that were not disqualifying
for further service at the time of discharge fall within the purview of the
Department of Veterans Affairs (DVA).  Therefore, any claims the applicant
has regarding non-disqualifying service connected conditions should be
addressed to the DVA.

7.  Although the opinion and recommendations submitted by the USARC G-1
were carefully evaluated, these findings and conclusions appear to rely
heavily on the applicant's statement.  Absent corroborating evidence of
record that supports the assertions made in the applicant's statement or
that confirms any impropriety on the part of his active duty or USAR
commanders in extending him on active duty, or medical evidence that
confirms his medical condition was unfitting for further service, there is
an insufficient evidentiary basis to support providing the antedated
enlistment contract recommended by the USARC G-1.

8.  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

__SLP  __  __JEA __  __JRS___  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.




                                  _____Shirley L. Powell ____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070001779                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/16                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2005/09/30                              |
|DISCHARGE AUTHORITY     |AR 135-178                              |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |126.0500                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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