IN THE CASE OF:
BOARD DATE: 19 August 2008
DOCKET NUMBER: AR20080008963
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 restoration of his rank and grade to sergeant (SGT)/
E-5, with all back pay and allowances.
2. The applicant states, in effect, that based on the Army Discharge Review Board's (ADRB) decision to change his discharge, he requests restoration of his grade with all back pay and allowances.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of ADRB Docket Number AR20050003594, dated 14 June 2005.
CONSIDERATION OF EVIDENCE:
1. The applicant served in the Regular Army from 2 September 1982 through
21 August 1991. He attained the grade of SGT/E-5. He was administratively discharged under the provisions of Army Regulation 635-200, chapter 14-12b, for misconduct pattern of misconduct, with a general discharge (GD), under honorable conditions.
2. On 14 June 2005, the ADRB determined that the applicant's discharge was improper because the chain of command used improper board notification procedures, which required General Court-Martial Convening Authority approval of the final discharge. The ADRB voted to upgrade the applicant's discharge to honorable and change his narrative reason for separation to Secretarial Authority. The applicant was issued a new DD Form 214.
3. In a previous application to the Army Board of Correction of Military Records (ABCMR), the applicant requested monetary compensation for damages that resulted from his improper discharge characterization (ABCMR Docket Number AR20070007400). In that decision, the ABCMR denied the applicant's request. Notwithstanding the administrative oversight of the separation authority, the ABCMR found that the applicant's command was justified in processing his administrative discharge based on the misconduct he committed.
4. A review of the applicant's official record shows that on 9 July 1991, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) breaking restriction. His punishment consisted of a reduction to specialist four/E-4 and 45 days extra duty and of restriction. The applicant appealed the NJP and on 17 July 1991, his appeal was denied.
5. Army Regulation 27-10 provides policy for the administration of military justice. Chapter 3 provides that NJP punishment is appropriate in all cases involving minor offenses in which nonpunitive 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 before courts-martial 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant was reduced from SGT/E-5 as a result of NJP imposed on
9 July 1991. The applicant had the opportunity to appeal the NJP and submit additional matters in support of his appeal. His appeal was denied.
2. The NJP was imposed in compliance with applicable laws, regulations and policies. The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicants rights.
3. The applicant was administratively discharged because of his pattern of misconduct. The NJP imposed on 9 July 1991 was a part of the applicant's pattern of misconduct which led to his administrative discharge. Because the ADRB found his discharge improper based on an administrative oversight, does not change the fact that the applicant committed the misconduct which formed the basis of his discharge. The command was justified in processing the applicant for administrative separation based on the committed offenses.
4. Given the above, there is no basis upon which to grant the applicant's request. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit any evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ___X____ ___X__ _ 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.
_______ _ _X______ ___
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.
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