RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070007830 


	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. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

Member

Mr. Qawiy A. Sabree

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 compensation for the wrong done to him by the United States Army.

2.  The applicant states, in effect, that his stripes and pay were taken from him and he was denied a career in the United States Army.  He contends that the Board's approval of his earlier request for an upgrade of his discharge proves he should be compensated.

3.  The applicant provides a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214), Honorable Discharge Certificate, and previous Board proceedings.

CONSIDERATION OF EVIDENCE:

1.  On 25 November 1952, the applicant was inducted into the Army of the United States.  He completed his initial training and served a combat tour in the Republic of Korea.  He was promoted to sergeant, pay grade E-5 on 7 July 1954, and was released from active duty and transferred to the United States Army Reserve on 22 October 1954.

2.  On 3 January 1955, the applicant enlisted in the Regular Army 6 years.  He was assigned for duty in the Federal Republic of Germany.

3.  The applicant was convicted by three summary courts-martial.  On 13 August 1958, he was convicted of being absent without leave (AWOL) for 8 hours.  On 17 August 1959, he was convicted of breaking restriction.  On 28 September 1959, he was convicted of being AWOL and breaking restriction.  His punishments included forfeitures of pay, confinement at hard labor, and reduction to private.

4.  On 15 December 1960, the applicant was discharged under honorable conditions.  He held the rank of private, pay grade E-2.  He had completed 
8 years and 22 days of creditable active service.

5.  On 30 November 2006, the Board considered and granted the applicant's request to upgrade his general discharge, under honorable conditions, to honorable.  The Board's decision, rendered in the interest of justice and equity, stated that under current-day standards, it is doubtful that the applicant would have received a court-martial for his offenses.  He would more likely have received non-judicial punishment.  The Board also took into consideration the applicant's 46 years of good citizenship.  The Board did not render a determination of the applicant's guilt of the offenses for which he was punished, but only that the punishment was too harsh.   

6.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 states that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

7.  Paragraph 3-19 of Army Regulation 27-10 provides that the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has “promotion authority” within the meaning of Article 15(b) if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade.  It further provides that forfeitures of pay imposed by a field grade officer are limited to 50 percent of the individual's pay per month for no more than 2 months.

8.  Paragraph 3-24 of Army Regulation 27-10 provides that further misconduct by an individual within the period of suspension may be grounds for vacation of the suspended portion of the punishment.  Unless it can be determined the misconduct occurred prior to or within the period of suspension, it can not be categorized as further misconduct and cannot serve as a valid basis for a vacation action.  

9.  Army Regulation 600-8-19 (Enlisted Promotions) provides, in pertinent part, that commanders in the grade of lieutenant colonel, pay grade O-5, have promotion authority to grades E-5 and E-6.




DISCUSSION AND CONCLUSIONS:

1.  The evidence clearly shows that the Board granted the applicant's request for an upgrade of his discharge based on current standards and post-service factors. 

2.   There is no evidence showing that the applicant did not commit the offenses for which he was punished.  The Board did not question the applicant's guilt of the offenses for which he was punished.  It decided that under current standards, in 2006, the punishment was too harsh.   

3.  Even under current-day standards, the applicant could have been reduced in rank and pay grade by nonjudicial punishment.

4.  There is no evidence or reasonable argument upon which to conclude that the applicant was treated unjustly.

5.  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.

6.   In view of the above, the applicant's request should be denied.    

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QAS__  __CD ___  __LDS _     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.





___   Linda D. Simmons _______
          CHAIRPERSON




INDEX

CASE ID
AR20070007830
SUFFIX

RECON
 
DATE BOARDED
20071114 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
128
2.

3.

4.

5.

6.