IN THE CASE OF:	  

		BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090000659 


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 an unsigned letter to the Board, in effect, reconsideration of his request that he be reinstated to pay grade E-6, that he be retired by reason of length of service with 20 years of active Federal service, and that he be entitled to all back pay and allowances associated with 20 years of service.

2.  The applicant states, in effect, that he was the victim of inequitable treatment and that he was singled out for separation due to his being reduced and having reached his RCP (Retention Control Point).

3.  The applicant states, in effect, that he was not counseled or told to fight the Article 15.  He was told to take the Article 15 since he had not been in trouble before.  He states the Judge Advocate General's Corps officer should have told him that there was not enough evidence to prosecute him.  This information, he states, was very important and he should not have been misinformed.

4.  In support of his request for reconsideration, the applicant submitted a self-authored document he labeled"Request#1-25*****959, a copy of an incomplete DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)); a summary of what appears to be a military police "blotter entry" numbered Temp: #550-MPCO34; four DA Forms 2823 (Sworn Statement); 


two statements written on plain bond paper; and a copy of a Memorandum, Subject:  Visitation with Spouse While on Duty / Incident with SFC G, dated 6 October 1993.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070003098 on 27 March 2008.

2.  The applicant now submits a partially completed copy of the DA Form 2627 that he had in his possession that was initiated on 25 October 1993.  This is new evidence that was not available at the time the applicant's case was initially considered by the Board.  This document is considered new evidence and must be considered by the Board.

3.  A complete copy of the Military Personnel Office (MILPO) copy of the Article 15 which was not available when the applicant's case was initially considered is available for the Board's review.

4.  The evidence shows that at 1701 hours on 25 October 1993, the applicant met with the Commander, 17th Engineer Battalion.  The purpose of the meeting was to determine if the applicant should be punished under Article 15 for the following misconduct:  wrongfully communicating a threat to a noncommissioned officer by saying to her, "Your life is on the line," or words to that effect; being disrespectful in language and deportment towards a noncommissioned officer who was then in the execution of her office by calling her a bitch and approaching her in a threatening manner; and having received a lawful command from a superior commissioned officer to limit his contact with his wife, her unit, and her place of duty to dropping her off at work, one hour in the dining facility for lunch, and picking her up at the completion of her duty day, did willfully disobey the same on 5 October 1993.

5.  The evidence shows that the applicant was punished for having received a lawful command from a superior commissioned officer to limit his contact with his wife, her unit, and her place of duty to dropping her off at work, one hour in the dining facility for lunch, and picking her up at the completion of her duty day and for having willfully disobeyed the same on 5 October 1993.  The applicant was charged with two additional charges; however, these were dismissed by the applicant's battalion commander at the time the Article 15 proceedings were being conducted.

6.  At the time of the meeting with his battalion commander, the applicant was advised he was not required to make any statements, but if he did, they could be 
used against him in the proceeding or at a trial by court-martial.  He was advised he had several rights under Article 15 proceedings.  First, he was to understand that he [the battalion commander] had not yet made a decision whether or not he would be punished.  The battalion commander advised him he would not impose any punishment unless he was convinced beyond a reasonable doubt that he had committed the offenses.  He was advised he could ordinarily have an open hearing before him.  He was advised he could request a person to speak on his behalf.  He was advised he could present witnesses or other evidence to show why he should not be punished at all or why punishment should be very light.  He was advised he [the battalion commander] would consider everything he presented before deciding whether he would impose punishment and the type and amount of punishment he would impose.  He was advised if he did not want to dispose of this report of misconduct under Article 15, he had the right to demand trial by court-martial instead.  Finally, he was advised that in deciding what he wanted to do, he had the right to consult with legal counsel who was located at the 2nd Armored Division Trial Defense Service, Building 410, Room 173.  After being advised of the above, he was told he had 48 hours to decide what he wanted to do.

7.  On 27 October 1993, the applicant again met with the Commander, 17th Engineer Battalion.  Having been afforded the opportunity to consult with counsel, he advised the battalion commander he had decided not to demand trial by court-martial and in the Article 15 hearing he requested a closed hearing, that a person would not be speaking in his behalf nor was it being requested and that matters in defense, mitigation, and or extenuation would be presented in person or were attached to the DA Form 2627.

8.  The MILPO copy of the Article 15 which was initially introduced and of which the applicant provided a partial copy to the Board shows the applicant was initially charged with the violation of three articles:  violation of Article 134 (the general article), violation of Article 90 (assaulting or willfully disobeying a superior commissioned officer), and violation of Article 91 (insubordinate conduct toward a warrant officer, noncommissioned officer or petty officer).  During the Article 15 proceedings, the battalion commander was not convinced beyond a reasonable doubt the applicant had communicated a threat to the noncommissioned officer who was involved in the incident or that he had called her a bitch.  The DA Form 2627 shows these two charges of misconduct were lined through which signifies the charges were dismissed by him.

9.  As a result of the Article 15, the applicant received the following punishment:  forfeiture of $500.00 per month for two months (suspended until 27 March 1994), a reduction in pay grade from E-6 to E-5, and extra duty for 30 days.

10.  On the same date, 27 October 1993, the applicant was advised he had the right to appeal to the Engineer Brigade Commander of the 2nd Armored Division within 5 calendar days.  The evidence shows the applicant appealed and submitted additional matters for consideration by the brigade commander.

11.  On 30 October 1993, the applicant's appeal and additional matters that were submitted were reviewed by a representative of the Office of the Staff Judge Advocate.  After considering the appeal, it was this representative's opinion that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed.

12.  The applicant's appeal was denied by the brigade commander and he was so notified on 3 November 1993 and was provided a copy of the action on appeal on 4 November 1993.

13.  In the applicant's letter to the Board requesting reconsideration, he stated he went to the brigade level to appeal and the brigade commander said he would not go against his battalion commander.  He also stated there were no other appeals available.  The applicant then states he went to the post commander under the Open Door Policy and he finally got results.  He spoke to the division command sergeant major who investigated and he relieved the noncommissioned officer who was involved in the incident for which he received non-judicial punishment.  The relieved noncommissioned officer was also reassigned to Korea immediately following the incident.

14.  The applicant's record shows he was reduced to the pay grade of E-5 with an effective date of 27 October 1993.  At the time the applicant received the Article 15, he had completed 15 years, 1 month, and 23 days active Federal service.  The RCP for an E-5 was, at the time of the applicant's service, 13 years and 29 days of active Federal service.  On 27 October 1993, the applicant was 2 years and 24 days beyond his RCP.

15.  All the applicant's separation packet is not present in the available records; however, the available documents show that on 21 January 1994, a DA Form 4187 (Request for Personnel Action) was submitted.  The applicant’s 


commander initiated action to separate him from the service due to his having reached his RCP.  The battalion commander approved the recommendation and on 11 February 1994, the applicant was honorably discharged in the rank of Sergeant, pay grade E-5, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 16-8 (Reduction in Authorized Strength).  As indicated in the initial Record of Proceedings, the applicant had served 15 years, 5 months, and 7 days of total active service and was paid $14,799.39 in separation pay benefits on the date of his discharge.

16.  Army Regulation 27-10, Military Justice, provides policy and procedures for the administration of military justice within the Army.  It provides, in pertinent part, that when a commander determines that summarized NJP proceedings are appropriate, the Soldier will be notified of the imposing commander's intent to initiate proceedings under Article 15, UCMJ, the fact that the imposing commander intends to use summarized proceedings and the maximum punishment allowed, the right to remain silent, the offenses the Soldier has allegedly committed and the articles violated, the right to demand trial by courts-martial, the right to confront witnesses, examine the evidence and submit matters in defense, extenuation and/or mitigation and the right to appeal.

17.  Article 90 of the UCMJ is defined as assaulting or willfully disobeying a superior commissioned officer.  Any person subject to this chapter who--(a) strikes his superior commissioned officer or draws or lifts up any weapon or offers any violence against him while he is in the execution of his officer; or (b) willfully disobeys a lawful command of his superior commissioned officer; shall be punished, if the offense is committed in time of war, by death or such other punishment as a court-martial may direct, and if the offense is committed at any other time, by such punishment, other than death, as a court-martial may direct.

18.  Article 91 of the UCMJ is defined as insubordinate conduct toward a warrant officer, noncommissioned officer or petty officer.  Any warrant officer or enlisted member who--(a) strikes or assaults a warrant officer, noncommissioned officer, or petty officer, while that officer is in the execution of his office; (b) willfully disobeys the lawful order of a warrant officer, noncommissioned officer, or petty officer; or (c) treats with contempt or is disrespectful in language or deportment toward a warrant officer, noncommissioned officer, or petty officer while that officer is in the execution of his office; shall be punished as a court-martial may direct.



19.  Article 134 of the UCMJ is defined as the general article.  This general article addresses all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to the UCMJ may be guilty, shall be taken cognizance of by a general, special, or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court. 

DISCUSSION AND CONCLUSIONS:

1.  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 sufficient evidence that would satisfy this requirement and support the amending of the original recommendation made by the Board in this case.

2.  The applicant claims he was the victim of inequitable treatment; however, the record of proceedings clearly shows that he was provided all the options that are given others who are subjected to the possibilities of receiving non-judicial punishment for violation of the UCMJ.

3.  The evidence clearly shows the applicant was advised he had the option of demanding trial by court-martial rather than accepting non-judicial punishment for the charges that were made against him.  In a court-martial, as in the Article 15 hearing, he could have asserted his innocence and provided mitigating evidence and/or argument in his defense.  However, it should be noted that had the applicant risked demanding trial by court-martial, he also risked having a felony conviction on his record, if convicted.

4.  As can be seen by the evidence, during the conduct of the Article 15 proceedings, the battalion commander dismissed two charges of misconduct that had been made against the applicant.  The proceedings were no different for this applicant than they were for all other individuals who have faced non-judicial punishment and having an Article 15 imposed on them.  The applicant's assertion that he received inequitable treatment is without basis.

5.  The applicant's contention that he was not counseled or told to fight the Article 15 because there was not enough evidence to prosecute him has been noted and has also been found to lack merit based on the following:

   a.  There is no indication nor annotation on the DA Form 2627 itself or any other form of documentary evidence that shows he availed himself of the opportunity to consult with counsel.  At the conclusion of the meeting with his battalion commander when the applicant was advised of his rights, he was given 48 hours to consult with counsel and then decide whether to face trial by court-martial or accept non-judicial punishment.  The applicant has provided no documentary evidence that he sought actually legal counsel after he was advised of his rights by his battalion commander.  

	b.  Assuming that the applicant did seek counsel, his counsel was only responsible for giving him advice regarding his options.  Ultimately, the decision whether to accept the Article 15 or to face a court-martial and fight the charges that had been made against him rested with the applicant himself.  It should be noted that interactions between the applicant and his counsel were strictly confidential and there was no requirement to prepare a written record of what was said in their discussions; therefore, there is insufficient evidence to show that he was not properly advised by his counsel.  In any event, the applicant has failed to provide any evidence to show that he was inadequately represented or improperly advised by his defense counsel.

6.  The evidence shows the applicant appealed the punishment that was imposed on him.  The applicant's appeal and additional matters were submitted to and were reviewed by a representative of the Office of the Staff Judge Advocate.  After review of the appeal and all other additional matters, it was this representative's opinion that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed.

7.  The applicant asserts that he was singled out for separation due to his being reduced and having reached his RCP; however, he has not articulated how he was singled out.  The applicant's record shows he was reduced to pay grade of E-5 with an effective date of 27 October 1993.  At the time the applicant received the Article 15, he had completed 15 years, 1 month, and 23 days active Federal service.  The RCP for an E-5 was 13 years and 29 days of active Federal service at the time of the applicant's service.  On the date he was reduced, the applicant was 2 years and 24 days beyond his RCP.  The applicant's commander initiated action to separate him from service because of this and it appears that action was fully in compliance with Army regulations in effect on that date.  The applicant's contention that he was the victim of inequitable treatment and that he was singled out for separation due to his being reduced and having reached his RCP has been noted and is not supported by the evidence in this case.

8.  In view of the foregoing, there is no basis for granting the applicant's request that he be reinstated to pay grade E-6, that he be retired by reason of length of service with 20 years of active Federal service and that he be entitled to all back pay and allowances associated with 20 years of service.
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 to amend the decision of the ABCMR set forth in Docket Number AR20070003098, dated 27 March 2008.




      _______ _   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)                                         AR20090000659





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ABCMR Record of Proceedings (cont)                                         AR20090000659



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