IN THE CASE OF:	  

		BOARD DATE:	        9 JULY 2009

		DOCKET NUMBER:  AR20090007331 


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 his date of rank (DOR) for specialist (SPC)/pay grade E-4 be reset to 23 August 2006.

2.  The applicant states the non-judicial punishment (NJP) that was imposed under Article 15, Uniform Code of Military Justice (UCMJ), was unjust for personal reasons, especially the reduction to private first class (PFC)/pay grade E-3.  He states that in both instances of his failure to report for duty he had contacted his immediate supervisor at least an hour before accountability formations and provided receipts for a new tire and windshield repair.  He states his failure to obey a lawful order from a noncommissioned officer (NCO) was due to having to take care of his family instead of meeting with his sergeant and was approved by his battery commander.

3.  The applicant provides a copy of his DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the Regular Army on 23 August 2006 for a period of 3 years in pay grade E-3.  He completed basic combat and advanced individual training and was awarded military occupational specialty 19K (Armor Crewman).

2.  The date the applicant was initially promoted to SPC is not shown in the records available for review or in the applicant's interactive Personnel Electronic Records Management System records.

3.  On 24 January 2008, the applicant accepted company grade NJP under Article 15, UCMJ, for two specifications of failure to go at the time prescribed to his appointed place of duty and failure to obey a lawful order from an NCO.  The applicant did not request a person to speak in his behalf and he indicated he would present matters in defense, extenuation, and/or mitigation.  The punishment imposed consisted of reduction to PFC and extra duty for 14 days.

4.  On 24 January 2008, the applicant appealed his punishment but did not submit additional matters.

5.  On 27 January 2008, a Judge Advocate considered the applicant's appeal and opined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disproportionate to the offenses committed.

6.  On 28 January 2008, the applicant's appeal was denied by his battalion commander.

7.  On 23 August 2008, the applicant was again promoted to SPC.

8.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Paragraph 3-4 (Personal exercise of discretion) of this regulation states that a commander will personally exercise discretion in the nonjudicial punishment process by:

	a.  evaluating the case to determine whether proceedings under Article 15 should be initiated;

	b.  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and

	c.  determining the amount and nature of any punishment, if punishment is appropriate.

9.  Army Regulation 27-10 provides in table 3-1 (Maximum punishment) that the maximum punishment that can be imposed by a company grade officer under Article 15, UCMJ, is 14 days of extra duties, 14 days of restriction, correctional custody for 7 days, reduction to the next lower pay grade, and forfeiture of 7 days of pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DOR should be reset back to 23 August 2006.  He contends his punishment under Article 15, UCMJ, was unjust for reasons of personal interest.  However, he has not explained exactly what these reasons of personal interest are nor has he provided any evidence to substantiate them.  Therefore, his contention was not considered mitigating in the determination of his case.

2.  In addition to the punishment imposed, the applicant could have received 14 days of restriction and forfeiture of 7 days of pay.  The applicant's commander did not impose the maximum punishment allowable under Army Regulation 
27-10.  Without evidence to the contrary, it is presumed the applicant's commander exercised discretion in the NJP process for the applicant's offense.  Therefore, it is reasonable to conclude the commander considered any mitigating factors presented by the applicant when imposing punishment under Article 15, UCMJ.

3.  The applicant did not provide any additional matters in his appeal of his NJP.  Trial counsel reviewed the appeal and opined the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust.  The applicant's appeal was subsequently denied by his battalion commander.  Therefore, there is no indication of procedural or other errors that would tend to jeopardize the applicant's rights.

4.  In view of the above, there is insufficient evidence to change the applicant's DOR for SPC.

5.  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 that 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.



      ____________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)                                         AR20090007331



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ABCMR Record of Proceedings (cont)                                         AR20090007331



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