IN THE CASE OF:	  

		BOARD DATE:	        12 AUGUST 2008

		DOCKET NUMBER:  AR20080008346 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the nonjudicial punishment (NJP) he received (DA Form 2627) be set aside and that all rights and privileges be restored to him. 

2.  The applicant states, in effect, that he received a field grade imposition of NJP and was fined one-half of 1 months pay for 2 months by the battalion commander for failing to report to Atlanta, Georgia on the 2nd of November 2007 after completing his 15 day Continental United States (CONUS) leave.  He goes on to state that his return date was 2 November 2007; however, his plane ticket from Orlando, Florida (issued by the Army in Kuwait) was for the 5th of November.  He further states that he sent an e-mail to the first sergeant and asked for guidance and was instructed to call Atlanta and do what they tell you.  He continues by stating that he did as instructed and reported on Monday.  He also states that none of those facts were disputed during the proceedings, however, his commander imposed the punishment anyway.   

3.  The applicant provides an incomplete copy of an email to a master sergeant dated 30 October 2007, an incomplete copy of an email from the master sergeant dated 31 October 2007, and a copy of the Record of Proceedings under Article 15, UCMJ (DA Form 2627) dated 30 December 2007. 

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the United States Army Reserve (USAR) under the delayed entry program on 6 February 1984.  He enlisted in the Regular Army on 9 September 1984 and served on active duty as a military policeman until he was honorably released from active duty on 18 July 1987 and was transferred to the USAR Control Group (Ready).  He has served in the USAR through a series of continuous reenlistments (less one 6 month break in service) and was promoted to the pay grade of E-7 on 21 May 2000.   

2.  On 9 December 2006, he was ordered to active duty in support of Operation Iraqi Freedom and deployed to Iraq on 20 March 2007.  

3.  On 30 December 2007, NJP was imposed against the applicant for being absent without authority from his unit in Iraq from 3 November to 5 November 2007.  The applicant did not demand trial by court-martial.  He requested a closed hearing and did not submit matters in defense, mitigation or extenuation. His punishment consisted of a forfeiture of $1907.00 of pay per month for 2 months and the imposing commander (a lieutenant colonel) directed that the DA Form 2627 be filed in the performance section of his Official Military Personnel File (OMPF).  The applicant appealed the punishment to the brigade commander and his appeal was denied on 2 January 2008.  The DA Form 2627 indicates that a commander’s inquiry packet and a copy of the applicant’s enlisted records brief were attached with the DA Form 2627. 

4.  A review of the applicant’s official records failed to show that the DA Form 2627 is filed in his OMPF. 

5.  The applicant departed Kuwait on 2 March 2008 and was transferred to Fort Bragg, North Carolina, where he was honorably released from active duty on 31 March 2008 due to completion of required service.  

6.  The applicant was issued his 20-year letter on 22 July 2008 indicating that he had 23 years of creditable service for retirement.  

7.  Army Regulation 27-10, Military Justice, provides policy and procedures pertaining to the administration of military justice within the Army.  It provides, in pertinent part, that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  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 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 exculpating the Soldier.  “Clear injustice” does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.     


DISCUSSION AND CONCLUSIONS:

1.  While the applicant has provided email traffic between himself and a member of his unit asking for clarification regarding his return date to Iraq, the emails are incomplete and do not provide a full picture of what was being said and therefore cannot be used conclusively to ascertain what occurred in his case.  

2.  However, it is noted that a commander’s inquiry was conducted into the events that occurred and while the applicant has not provided a copy of the inquiry with his application, he elected not to demand trial by court-martial whereby he could have asserted his innocence before a panel of his peers and instead elected a closed hearing and chose not to present matters in his defense, mitigation and/or extenuation.

3.  It is also noted that he appealed the punishment to the higher authority and was unsuccessful in convincing that commander that his punishment was unjust or disproportionate to the offense for which he was accused.   

4.  It appears that the nonjudicial punishment 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. 

5.  Accordingly, it would be inappropriate to second-guess the commanders on the ground who had current information at the time and all of the circumstances in this case, by setting aside the punishment based on just the applicant’s version of the events. 

6.  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

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.





      ___        XXX                ___
                CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20080008346





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ABCMR Record of Proceedings (cont)                                         AR20080008346



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