RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070017128 


	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 J. Fowler

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea M. Nuppenau

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 that his rank and grade of Sergeant (SGT)/E-5 be restored.

2.  The applicant states, in effect, that he was reduced in grade as the result of an Article 15 and feels that the punishment was unjust and disproportionate.  

3.  The applicant provides a memorandum from E Company, 1st Battalion, 101st Aviation Regiment, dated 24 September 2007; an Article 15 Appeal memorandum, dated 4 October 2007; two DA Forms 4856 (Developmental Counseling Form); a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 17 October 2007; and an Enlisted Record Brief, prepared on 
24 September 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 June 2002 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  The applicant was honorably discharged on 31 August 2004 and immediately reenlisted on 1 September 2004.  He was promoted to the rank of SGT/E5 on 
1 May 2006.

2.  The applicant provided a memorandum from the safety officer of E Company, 1st Battalion, 101st Aviation Regiment, dated 24 September 2007.  The author stated, in effect, that on 21 September 2007 while conducting a safety inspection in the motor pool, the Company Safety Officer and the Battalion Safety Officer noted that the applicant was moving and backing a vehicle with no ground guide. The Company Safety Officer approached the vehicle when it stopped and informed the applicant that the vehicle was not to move until he had the proper ground guide.  The applicant proceeded into the motor pool and got a ground guide.  The Company Safety Officer stated that he listed this in his discrepancy record and submitted it in a memorandum-for-record to the applicant's company commander.

3.  On 21 September 2007, the applicant accepted a general counseling statement from his squad leader for performing an unsafe action in a military vehicle.  The squad leader stated, "you were seen backing an M-1078 2 1/2 Ton Truck without two ground guides, you did not even have the precaution of one ground guide."  The squad leader further stated that within the last week the 
applicant had completed his 40-hour Drivers Training Course.  After the painful and tragic lessons learned earlier in the year, he should have known the dangers of unsafe procedures while backing large vehicles. 

4.  On 24 September 2007, the applicant accepted a general counseling statement from his company commander for a safety violation in the motor pool.  The company commander stated, in effect, that the applicant was a noncommissioned officer (NCO) and was to maintain the regulatory safety standards.  He further stated that the applicant had attended the Company Commander's out-brief to all leadership on safety, where he explicitly laid out the directive of using two ground guides when backing military vehicles.  The company commander continued that the applicant had completed a week of drivers training and still chose to operate a tactical vehicle without a ground guide.  In essence, the directive to use ground guides was his (company commander’s) direct order to the applicant and the entire company.

5.  On 1 October 2007, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for dereliction in the performance of his duty in that he willfully failed to have a ground guide while backing up an M-1078, 2 1/2 ton truck.  The imposing commander found him guilty, and his punishment consisted of reduction to Specialist (SPC)/E-4; forfeiture of $989.00 pay per month for two months, suspended to be automatically remitted if not vacated before 1 April 2008; 14 days extra duty; and an oral reprimand.

6.  The applicant appealed his Article 15.  In his appeal statement, the applicant stated he felt that his reduction in rank was far too great a punishment.  He further stated that at the time the vehicle needed to be moved and he took the initiative to move it.  He looked around the motor pool for a ground guide and everybody had gone to lunch.  He made the decision to move the vehicle and made sure the area was clear around it.

7.  On 17 October 2007, the appeal authority approved the punishment but the execution of that part of the punishment extending to extra duty for 14 days was suspended for 180 days, at which time unless the suspension was sooner vacated, the suspended part of the punishment was to be remitted without further action.

DISCUSSION AND CONCLUSIONS:

The applicant contends that his reduction in grade as a result of an Article 15 was unjust and disproportionate.  However, evidence of record shows he was reduced from SGT/E-5 to SPC/E-4 for dereliction in his performance of his duty for not having a ground guide while backing a vehicle.  His company commander stated that the applicant attended his safety briefing and that the applicant had completed a week of drivers training the week prior to the infraction.  There is no evidence and the applicant has not provided evidence to show his punishment was unjust and disproportionate.  Therefore, there is insufficient evidence to support this argument.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM       ___CD__  __RMN__  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
AR20070017128
SUFFIX

RECON

DATE BOARDED
14 FEBRUARY 2008
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
129.0500.0000
2.

3.

4.

5.

6.