RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 November 2007
	DOCKET NUMBER:  AR20070012598 


	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:


Mr. Kenneth L. Wright

Chairperson

Ms. La Verne M. Douglas

Member

Mr. Michael J. Flynn

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 restoration of his rank. 

2.  The applicant states, in effect, that his nonjudicial punishment (NJP) was too harsh, and that his race was used against him.  He states that a mistake was made and he meant no harm to anyone.  In the case of the first two Soldiers, it was only conversation that became twisted to make him look wrong.  He further states that all he is asking for, in this application, is to have his rank restored to staff sergeant.  He observes that the money is already gone; that he has served the extra duty; and that the letter of reprimand has been given.  

3.  The applicant provides copies of his Record of Proceedings Under Article 15, Uniform Code of Military Justice (DA Form 2627), with enclosures; Appeal of Punishment; Letter of Reprimand, dated 19 December 2006; Personnel Qualification Record; Female Advisory Board Meeting, dated 1 November 2006; fourteen sworn statements; personal financial statement; reduction orders;  Noncommissioned Officer Evaluation Report; and electronic communications between himself and the Inspector General's Office. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving on active duty as a member of the United States Army Reserve, in the rank of sergeant, pay grade E-5.

2.  On 2 December 2006, the applicant consulted with counsel.  He waived his right to demand a trial by court-martial.  He requested a closed hearing, to have another person speak in his behalf, and indicated that matters in defense, mitigation and/or extenuation would be presented.  The DA Form 2627 (Record of NJP Proceedings) does not indicate what, if any, information was presented at the proceedings.

3.  On 8 December 2006, the applicant accepted NJP under the provisions of Article 15, Uniform Code of Military Justice, for wrongfully attempting to engage in prohibited relationships with two different subordinate Soldiers, and for wrongfully attempting to violate camp policy by inviting a Soldier of the opposite sex into his quarters.  The punishment included a reduction to sergeant (pay grade E-5), a forfeiture of $1,000.00 pay per month for 2 months, and 30 days extra duty.  The applicant appealed the punishment, contending that it was too 

harsh.  The Staff Jude Advocate reviewed the appeal and recommended that it be denied.  The commander amended the punishment by suspending the forfeiture of $1,000.00 pay per month for 2 months for a period of 6 months, unless sooner vacated.   

4.  The NJP worksheet indicated that the imposed punishment was to include a written reprimand.  However, the punishment imposed by the commander did not include a written reprimand.

5.  On 19 December 2006, the commander, a colonel, pay grade O-6, reprimanded the applicant, in writing, for attempting to engage in inappropriate relationships and violate camp policy.  The Letter of Reprimand (LOR) stated that the applicant had approached two female subordinate Soldiers with the intent to have a relationship with them, and sought to violate camp policy by inviting a female Soldier into his quarters.  The LOR informed him that this conduct was unacceptable, and that he, as a noncommissioned officer, had a responsibility to consider the effects of his actions or perceived actions on his unit and the Army, and to exercise mature judgment in whatever he did.  The commander did not indicate in the LOR that this reprimand was given as part of any other punishment.  Furthermore, it did not specify where or how the LOR was to be filed.  

6.  The electronic communication from the Inspector General’s (IG) Office, as provided by the applicant, states that when the commanding general was presented with the IG findings indicating that the female Soldier had to have been in the applicant's room in order to uphold the policy, the commanding general replied that there was more than just one occasion where the applicant had asked females into his quarters.  Consequently, the commanding general decided to stay with the original findings. 

7.  Seven of the sworn statements provided by the applicant were made prior to the applicant's NJP and describe his inappropriate actions.  One sworn statement was made by the applicant on the day of his NJP.  The remaining six statements are more recent and were written in support of this application.  They, in effect, portray the applicant as a good noncommissioned officer who was too harshly punished, and state that his rank should be restored.  

8.  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 unsworn 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.

9.  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.

10.  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 cannot be categorized as further misconduct and cannot serve as a valid basis for a vacation action.  

11.  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 applicant consulted with counsel and waived his right to demand a trial by court-martial.  He requested a closed hearing, to have another person speak in his behalf, and indicated that matters in defense, mitigation and/or extenuation would be presented.  The DA Form 2627 (Record of NJP Proceedings) does not indicate what, if any, information was presented at the proceedings.

2.  There is no available evidence showing that the NJP, as imposed, was not in compliance with applicable laws, regulations and policies.  The punishment imposed was within legal limits. 

3.  The applicant's contention that the punishment was too harsh is not substantiated by any of the available evidence.  

4.  The applicant's contention that his race contributed to the severity of his punishment is also not substantiated by any of the evidence.  

5.  It is noted, however, that the applicant claims he had to pay the suspended forfeiture of $2,000.00.  This should have occurred only if that portion of the punishment had been vacated due to his additional misconduct during the period of the suspension.  The available evidence is insufficient to make a determination on this issue.

6.  In view of the above, the applicant's request to restore his rank should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_ KLW__  __MJF  __  __LMD __  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.




_      Kenneth L. Wright ___
          CHAIRPERSON




INDEX

CASE ID
AR20070012598
SUFFIX

RECON
 
DATE BOARDED
20071106 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
  . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
126
2.

3.

4.

5.

6.