IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090016906 


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 reduction to pay grade E-5, resulting from an August 2009 UCMJ (Uniform Code of Military Justice) action, be voided.

2.  The applicant states, in effect, he was wrongly reduced to pay grade E-5 as a result of punishment under Article 15 of the UCMJ.  He states that USAREC (United States Army Recruiting Command) Pamphlet 600-14 precludes the reduction of an E-6 or above.  He states that he believes he is a victim of a misinterpretation of the regulation.

3.  The applicant also states that he appealed the punishment but “the general decided that my reduction carried.”  He states that he is asking the Board to overturn his reduction in rank because the command did not rescind or correct their own regulation and used other avenues to reduce him in rank.

4.  The applicant provides the first page of his DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), a copy of his 26 August 2009 appeal, and a copy of another statement outlining the extra duties he performed in March 2008 and February 2009.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board indicate the applicant enlisted in the United States Army Reserve in July 2002.  He was ordered to active duty in February 2004 and served in Afghanistan prior to being released from active duty in June 2005.  On 1 December 2005 he was promoted to pay grade E-5.  
2.  In July 2006 the applicant was ordered to active duty in an Active Guard Reserve (AGR) status and assigned to the United States Army Recruiting Battalion, Chicago. 

3.  On 1 December 2007 he was promoted to pay grade E-6 under the provisions of Army Regulation 600-8-19, chapter 3.

4.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), Chapter 3, governs the E-5 and E-6 promotion system for Active Army and USAR AGR Soldiers.  It states that field-grade commanders in units authorized a commander in the grade of lieutenant colonel or higher have promotion authority to grades of sergeant (E-5) or staff sergeant (E-6).  It notes that promotions to E-5 and E-6 are executed in a semicentralized manner and that Headquarters, Department of the Army (HQDA) will handle promotion cutoff scores and the monthly E-5/E-6 promotion selection by-name lists, which are determined and announced monthly.  HQDA and Human Resources Command (HRC)-St. Louis will determine the needs of the Army by grade and MOS (military occupational specialty).

5.  A performance evaluation report, rendered on 25 June 2009 for the period 
1 July 2008 to 20 April 2009, relieved the applicant from his duties as a USAR recruiter.  The report noted the applicant “displayed the wrong example to subordinates by committing a criminal incident resulting in his arrest” and that he was relieved “due to serious criminal charges.”

6.  According to the front page of the DA Form 2627, provided by the applicant in support of his request, he was punished under Article 15 of the UCMJ in August 2009 for wrongfully using a government travel card for unofficial purposes between 10 February and 11 March 2009.  The document also contains the statement “SEE CONT. SHEET” but the continuation sheet was not provided by the applicant nor is it contained in his OMPF (Official Military Personnel File).  The punishment imposed is noted as “reduction to the grade of E-5” in block 5 on the DA Form 2627.  The applicant indicated that he would appeal and submit additional matters.

7.  In a 26 August 2009 memorandum the applicant appealed his UCMJ action noting the impact of the punishment on his career.  He asked that the Article 15 be rescinded “due to punishment served” and asked that he be barred from reenlisting and permitted to separate in January 2010 on his scheduled separation date.  He admitted to wrongfully using a government travel card for unofficial purposes because of the pressure of unpaid bills.  He stated, however, that he did not lie to an agent.  The lying to an agent was apparently another charge on the DA Form 2627 and was likely what was on the continuation sheet that was not available to this Board.

8.  The applicant did note in his appeal that it was “unlawful for my command to reduce me in rank” according to the provisions of USAREC Pamphlet 600-14 and Army Regulation 600-8-19, paragraph 10-3.  In a second memorandum, addressed specifically to the Commanding General, USAREC, the applicant asked that his reduction in rank be revoked under USAREC Pam 600-14, "page" 9(d) and Army Regulation 600-8-19, paragraph 10-3, because he was a USAR AGR Soldier.

9.  Block 8 of the DA Form 2627 notes the Article 15 proceedings were conducted in accordance with applicable law and regulation and that “evidence for Specification 2, however, does not prove beyond a reasonable doubt that SGT W... committed the offense.”  It concluded the punishment imposed was 
neither unjust nor disproportionate to the offense committed in Specification 1.  The appeal authority, a major general, denied the applicant’s appeal on 
21 September 2009.

10.  On 21 December 2009 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct-serious offense.  He was separated in pay grade E-5 and his service was characterized as honorable.  Documents associated with his involuntary administrative separation were not available to the Board.  

11.  Army Regulation 27-10 (Military Justice) states that the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander.  It notes that for the purposes of this regulation, the imposing commander or any subordinate commander has “promotion authority” within the meaning of Article 15 if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade under Army Regulation 600-8-19.

12.  USAREC Pamphlet 600-14 (Handbook for the Administration of Active Guard Reserve Personnel in the Recruiting Command), Table 4 (identified by the applicant as page 9(d)) states that “reduction for misconduct under Article 15, UCMJ, is not authorized for USAR AGR Soldiers in the grades of SSG through SGM.”  It references Army Regulation 600-8-19, paragraph 10-3.

13.  Army Regulation 600-8-19, paragraph 10-3 notes for UCMJ, Article 15, to see Army Regulation 27-10 and that Soldiers in the grades of SFC (emphasis added) through CSM may not be reduced under this provision.
14.  Paragraph 1b of USAREC Pamphlet 600-14 also states that “in any conflict between the contents of this handbook and the provisions of any regulation, the regulation takes precedence.”  

15.  Army Regulation 635-200, paragraph 14-12c, provides for the administrative separation of Soldiers for commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be authorized for the same or a closely related offense under the Manual for Court Martial.  Normally a discharge under other than honorable conditions is appropriate for Soldiers discharged under the provisions of Army Regulation 635-200, paragraph 14-12c.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is correct that there is a conflict between the USAREC Pamphlet 600-14 and Army Regulation 600-8-19, however, the pamphlet does state that when such conflicts occur the provisions of the regulation take precedence over the pamphlet.

2.  The applicant’s reduction as a result of his UCMJ action was appropriate.  His argument that USAREC Pamphlet 600-14 precluded such a reduction is without foundation.  Clearly the provisions of the Army Regulation 600-8-19 under which he was promoted and which was cited as the reference in the USAREC Pamphlet permitted reduction from the grade of E-6.  In this case, because there is a conflict between USAREC Pamphlet 600-14, which does state that “reduction for misconduct under Article 15, UCMJ, is not authorized for USAR AGR Soldiers in the grades of SSG through SGM,” and Army Regulation 
600-8-19 which permits the reduction of Soldiers in grade E-6 and below, the Army Regulation prevails.  

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.






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)                                         AR20090016906



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ABCMR Record of Proceedings (cont)                                         AR20090016906



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