IN THE CASE OF:	  

		BOARD DATE:	    21 January 2010

		DOCKET NUMBER:  AR20090012446 


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 nonjudicial punishment (NJP) imposed under Article 15, Uniform Code of Military Justice (UCMJ), be set aside and removed from all military records, and that his military records be corrected to show that he was never given an NJP by restoring his date of rank (DOR) to pay grade E-6 and returning to him the difference in pay this correction will necessitate.

2.  The applicant states that he was given NJP even though he was never proven guilty of the charges listed on the record of proceedings under Article 15, UCMJ.  The applicant provides a list of things which he believes renders the NJP invalid, amongst those not being provided legal assistance and his inability to provide various items when he appealed his punishment which would show that he was innocent of the charges.  The applicant adds that even though there was no letter of continuance, his reduction of pay was executed after he was transferred to another unit.

3.  The applicant provides excerpts from his military records pertaining to his NJP and his NJP appeal, and an application for remission or cancellation of indebtedness.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that on 16 May 2006, the applicant accepted NJP for disobeying a lawful order to complete his plan of action by 

doing the written assignments; and with intent to deceive, make an official statement which was totally false and was then known by him to be false.  The applicant's punishment consisted of a reduction to pay grade E-5 and an oral reprimand.  The applicant's commander ordered the NJP to be filed in the restricted portion of applicant's records.

2.  In the record of proceedings under Article 15, UCMJ, the applicant was advised that he had the right to consult with legal counsel and he had the right to demand trial by court-martial instead of accepting NJP.  The applicant apparently opted not to consult with legal counsel.  Attached to the record of proceedings were four developmental counseling forms from a noncommissioned officer (NCO) who had reported the applicant's misconduct.

3.  On 17 May 2006, the applicant appealed the punishment imposed by the NJP.  In that appeal the applicant stated that the time of his NJP hearing had been moved up by an hour and he was not granted an opportunity to request a delay of the hearing.  As a result, all of the character witnesses were not able to be present with their statements.  This denied him the best opportunity to fairly present his defense against the charges.  In addition, he was not provided with all of his counseling statements that he had requested.  The applicant provided the appellate authority with the documentation which he did not have at the NJP hearing.

4.  On 26 June 2006, the applicant submitted a second appeal to his NJP.  In this appeal the applicant alleged that he did not willfully disobey a lawful order and that the NCO who made that charge had a personal bias and was stereotyping when he made that allegation.  The applicant adds that he had conducted himself in a professional manner, maintaining his bearing and rendering respect, while at the position of parade rest.  He did not assault or strike the NCO in any way and was not disrespectful.  The applicant then describes his recollection of the events which transpired which led to his charge of intent to deceive.  The applicant concludes with stating that he believes his NJP was in retaliation for his going to see the command sergeant major (CSM).

5.  On 19 July 2006, the applicant's brigade commander denied the applicant's appeal, stating that "The proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offenses committed."

6.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial 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 informed in the NJP record of proceedings that he had the right to legal counsel and the right to demand trial by court-martial instead of accepting the NJP.

2.  It appears the applicant opted not to consult with legal counsel and did not chose to demand trial by court-martial, where rules of evidence would apply, to prove his innocence.

3.  While no evidence has been provided to substantiate the applicant's contention that his NJP hearing was moved up an hour, such an event is certainly plausible given the operation tempo of a wartime Army.  While that may have resulted in the applicant not being able to have all of his witnesses testify, in the appellate process he was able to provide all the evidence that he was unable to provide during his NJP hearing.  When provided the full array of statements and other matters of defense, the appellate authority found that the punishments imposed were not unjust or disproportionate to the offenses committed.

4.  The applicant's statement that even though there was no letter of continuance, his reduction of pay was executed after he was transferred to another unit is not understood.  It does not matter if a Soldier is transferred to another command when NJP is imposed.  When punishment is ordered, that punishment will be executed regardless of whether the Soldier remains in the unit in which the punishment is imposed or transferred to another unit.

5.  In summary, the applicant was given due process throughout his NJP proceedings.  The fact that the applicant disagrees with the findings of his guilt 
and the punishment imposed is understandable.  However, his disagreement does not form the basis of an error or injustice which would warrant correction of his records.


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)                                         AR20090012446





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ABCMR Record of Proceedings (cont)                                         AR20090012446



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