IN THE CASE OF:	  

		BOARD DATE:	        4 June 2009 

		DOCKET NUMBER:  AR20090000116 


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 that a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) be expunged, his rank and pay grade restored, the narrative reason for separation changed, the separation code changed, and the reentry (RE) code be upgraded. 

2.  The applicant states, in effect, that the evidence in the case and the Army Discharge Review Board's (ADRB) decision demonstrate that these corrections are appropriate.  He disagrees with the ADRB's decision to not change the reason for separation and the (RE) code.  He has always maintained his moral code and military values.  He believes there was no in-depth inquiry on his behalf.  Evidence was overlooked and no favorable consideration was given to him even though he supplied the evidence that would have vindicated him.  He was a career Soldier who was good enough to serve until he was diagnosed with post traumatic stress disorder (PTSD).  With respect to specific incidents he states the following:

	a.  He believes the NJP should be expunged because he spent two-and-a half years trying to get it reversed.  He feels as though two other Soldiers committed rape but were able to protect themselves while he lost his career.  He thinks that the U. S. Army Criminal Investigation Command (USACIDC, also known as CID) and the military justice system misconstrued the facts based upon the erroneous statements of one of the other noncommissioned officers (NCO) involved.  That individual had made the statement based upon a misunderstanding.  After he became a suspect, the others were just protecting their own careers.  
   b.   He relates that the incident of missing movement, suicidal gesture, and possession of paraphernalia occurred while he was home from Iraq on rest and recuperation (R & R).  He went to his unit for help in overturning the NJP.  They did not help him and the Command Sergeant Major (CSM) accused him of drinking when he was not supposed to drink.  He insisted that he had not been drinking.  The CSM ordered him to leave.  He went to the Class Six store and purchased a six-pack [of beer] and a fifth [of alcohol] and went home to drink.  The next thing he knew the military police were in his house and he was arrested because of a supposed suicidal gesture.  He was charged with possession and underwent 13 drug tests, all of which were negative.  He does not know what really happened. 
   
   c.  In describing the civilian arrest for assaulting a police officer and carrying a concealed weapon he writes, in effect, that the "lay statement" [apparently his own since nothing else was received] will belie the weapons charge and that the assault on an officer charge was dismissed.  He describes his behavior as blameless and contends that he was the one who was threatened and physically abused.  What the police called an assault happened when he accidentally fell into the officer after being pushed by him.  He attached a copy of a county court order showing that some case against him was dismissed without prejudice on 
7 June 2007.  [He did not attach the police report.]
   
   d.  He indicates that the narrative reason for separation should be changed because the evidence fails to show that he committed any serious offense, because of the high quality of his service for the past 6 years, and because of the fact that he still suffers from PTSD.
   
   e.  His rank and pay grade should be restored, the separation code changed, and the RE code upgraded based upon all the facts of the case and his current Department of Veterans Affairs (VA) rating.

3.  The applicant provides copies of his own memoranda addressing the separate issues; parts of CID, Camp Taji, Iraq investigation report and associated sworn statements; a DA Form 2627 (Record of Proceedings under Article 15, UCMJ); his 28 June 2006 memorandum to the Commander, Multi- National Corps, Iraq; a 7 June 2007 county court order of dismissal; a 19 June 2007 letter to a U.S. Representative and the Representative's 12 July 2007 response [without enclosure]; a 2 July and a 4 October 2006 memorandum to two state legislators; mental health summaries, dated August 2006 and August 2007; a VA rating decision document, dated 18 March 2008; an August 2008 drug test report; his ADRB Case Report and Directive, dated 26 September 2008; and his DD Form 214 (Certificate of Release or Discharge from Active Duty).
CONSIDERATION OF EVIDENCE:

1.  The applicant was a Regular Army (RA) sergeant (SGT)/pay grade E-5, with approximately 5 years and 6 months of active duty service at the time of the incident.  His military occupational specialty (MOS) was 92Y (unit supply specialist), and he was serving with a signal unit in Iraq.
 
2.  On 20 May 2006, the CID at Camp Taji, Iraq opened an investigation into an incident that occurred the night before.  A female Soldier claimed to have been kidnapped and raped.  Her assigned weapon had turned up in the official vehicle used by the applicant and his companions.  The available evidence reveals an incident involving the applicant, four other NCOs, and female enlisted personnel in a late night episode of drinking and sexual behavior in the male's residence that resulted in several accusations and counter-claims.  The applicant made a sworn statement on 20 May 2006 and added to it in response to specific questions on 25 May 2006.

3.  A 20 May 2006 memorandum from the applicant's unit commander requested that he be allowed a temporary change of station due to a family problem.

4.  On 24 June 2006, the applicant was informed that the Commanding General, Iraq Assistance Group was considering whether to impose NJP for committing sodomy with a female private first class (PFC) on 19 May 2006.  The applicant indicated that he had been afforded an opportunity to consult with counsel, did not wish to demand trial by court-martial, requested an open hearing, and that he wanted another person to speak on his behalf.

5.  That same day, the commanding general imposed the following punishment:  reduction to pay grade of E-4, forfeiture of $967.00 pay per month for 2 months, and extra duty and restriction for 45 days.  At least one other NCO also received NJP in connection with this incident.

6.  The applicant appealed the punishment in a 28 June 2006 memorandum to the Commander, Multi-National Corps, Iraq.  The applicant stated that he had been found guilty at the NJP proceedings because of the statement of a fellow NCO who had misunderstood and/or misconstrued what the applicant had told him about the incident.  The applicant claimed to have signed the CID statement "just to get it over with" because he was preoccupied with his family problems.  He asked the appeal authority to overturn the NJP because of his family financial problems.  His wife had recently received a serious driving under the influence (DUI) citation, which when added to the NJP punishments he had received, 

made his financial situation hopeless.  An officer of the Judge Advocate General's Corps opined that the proceedings had been conducted in accordance with law and regulation and that the punishments imposed were not unjust or disproportionate to the offense committed.  The appeal authority denied the appeal on 13 July 2006.

7.  On 1 September 2006, the applicant was counseled for failing to register a privately owned weapon at Fort Huachuca, AZ; for missing movement back to Iraq; and for possessing drug paraphernalia that tested positive for marijuana. 

8.  The applicant was arrested in Sierra Vista, Arizona, on 20 May 2007, and charged with aggravated assault on a police officer and carrying a concealed weapon, a .357 magnum revolver, in his waistband under his shirt.

9.  On 31 May 2007 the applicant was counseled about threatening two military police officers, failing to register a privately owned weapon, missing movement, possessing drug paraphernalia, making a suicidal gesture, and the civilian arrest. 

10.  On 5 June 2007, at a mental status evaluation, the applicant's behavior was normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking was clear, his thought content normal and his memory good.  There was no significant mental illness.  He was considered to have the capacity to participate in the separation proceedings.  The psychiatrist conducting this evaluation also noted that the applicant had been evaluated for processing for misconduct; that a clinical evaluation indicated that he did not have any psychiatric disease, defect, or personality disorder that would cause significant defects in judgment, responsibility or reliability; there was no indication of any mental or emotional defect requiring disposition through medical channels; he was psychiatrically cleared for administrative action deemed appropriate by the command.

11.  On 13 July 2007, the applicant acknowledged receipt of notification of the intended separation action.  He consulted with counsel and requested consideration of his case by an administrative separation board and a personal appearance before that board.  He indicated that supporting documents would not be submitted within the next 7 days and requested representation by a named military counsel.  He indicated that he understood that he could expect to encounter substantial prejudice in civilian life if he received an other than honorable discharge and that he might lose Federal and State benefits.



12.  The staff judge advocate forwarded the discharge package to the separation authority, noted that the applicant's command recommended separation with an 
other than honorable discharge, and concurred in that recommendation.  The separation authority referred the case to a standing administrative separation board.  

13.  On 21 August 2007, the applicant offered to waive consideration by an administrative separation board, contingent upon receiving no less than a general, under honorable conditions discharge.  The separation authority approved that action and directed the applicant's separation.

14.  On 28 September 2007, the applicant was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct) by reason of misconduct (serious offense).  He was issued a General Discharge Certificate.  He had 5 years, 10 months, and 12 days of total active duty service and
11 months and 9 days of prior inactive service.  He was assigned a separation code of JKQ and an RE code of 3.    

15.  On 26 September 2008, the ADRB denied the applicant's request to upgrade the characterization of his service or change the narrative reason for his separation. 

16.  Army Regulation 27-10 (Military Justice) 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.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, 

and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate for a Soldier discharged under this chapter.  

18.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) 
provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  The SPD code of JKQ was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of Army Regulation 635-200, chapter 14.  Table 2-3 (SPD/RE Code Cross Reference Table) contained in Army Regulation 635-5 (Separation Documents) establishes RE code 3 as the proper RE code for the SPD issued. 

19.  Army Regulation 601-210 (Active Duty and Reserve Components Enlistment Program), in effect at the time, prescribed eligibility criteria, policies, and procedures for enlistment and processing into the RA and the U.S. Army Reserve (USAR).  Chapter 3 of that regulation prescribed the basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes including RA RE codes.  RE-3 applied to persons not qualified for continued Army service at the time of separation, but the disqualification is waivable.  RE-4 applies to persons with a non-waivable disqualification.  That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect.

DISCUSSION AND CONCLUSIONS:

1.   The applicant states that relief is warranted because the evidence fails to show that he committed any serious offense, because of the high quality of his service for the past 6 years, and because of the fact that he still suffers from PTSD.

2.  As its name suggests, NJP is different from a trial by court-martial.  An NJP hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand trial by court-martial where he would receive the protection of the rules of evidence.  Instead, he chose to have the matter settled by NJP.

3.  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 applicant's rights.  
4.  The applicant waived his right to counsel and to have his case considered by an administrative separation board contingent upon receiving a discharge no less favorable than general, under honorable conditions.  There is no evidence or an assertion that he did not understand the consequences of this action.

5.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the applicant's discharge is commensurate with his overall record of military service.

6.  There is no basis for changing or removing the RE code from the applicant's record.  However, the disqualification is waivable.  The applicant is advised that if he desires to reenter military service, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers for the applicant. 

7.  There appears to be no basis for removal or waiver of the disqualification which established the basis for his assigned RE code and no reason to change the narrative reason for separation or separation code.

8.  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

___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.

ABCMR Record of Proceedings (cont)                                         AR20090000116



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ABCMR Record of Proceedings (cont)                                         AR20090000116



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