IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090020923 


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 correction of his military records by setting aside the nonjudicial punishment (NJP) imposed under Article 15, Uniform Code of Military Justice (UCMJ).

2.  The applicant states that he was reduced from pay grade E-5 to pay grade 
E-2 as a result of two NJP's given him in a short period of time.  He contends that the punishment was too harsh and he was not afforded the opportunity to appeal the punishments.  He further states that if his punishments stand, they will cost him more than $300,000.00 in retired pay.

3.  The applicant provides no additional documents in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was retired as a private, pay grade E-2, due to a physical disability.

2.  The applicant served in the California Army National Guard (CAARNG) during the following periods:

	a.  19 October 1982 to 1 November 1984;

	b.  6 October 1989 to 25 March 1992; and 

	c.  25 January 2006 to 27 July 2009.
3.  On 22 August 2006, the applicant was ordered to active duty service as a member of the CAARNG. 

4.  Orders 281-1023, CAARNG, dated 7 October 2008, promoted the applicant to sergeant, pay grade E-5, effective 15 September 2008.

5.  On 24 February 2009, a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) was initiated by the applicant's company commander.  It informed the applicant that he was considering him for NJP for his being found drunk while on duty as a wounded warrior on 8 July 2008.  The applicant was provided a period of 48 hours to consult with defense counsel and to decide what he wanted to do.  The continuation sheet is not available for review of any other offenses.

6.  The DA Form 2627 indicates that on 11 March 2009 the applicant elected:

	a.   not to demand a trial by court-martial;

	b.  an open hearing;

	c.  to have a person speak on his behalf; and

	d.  to personally present matters in defense, mitigation, and/or extenuation.  

7.  On 11 March 2009, in an open hearing, the company commander found the applicant guilty of the offense.  The punishment included a reduction to specialist, pay grade E-4 and a forfeiture of $1,109.00 pay per month for 2 months (this was less than half of his $2,828.40 monthly pay).  The imposing commander directed filing of the DA Form 2627 in the performance section of his Official Military Personnel File (OMPF).  The applicant was advised of his right to appeal within 5 calendar days.

8.  On 11 March 2009, the applicant indicated that he would appeal and submit additional matters.

9.  Orders 121-1035, CAARNG, dated 1 May 2009, reduced the applicant to specialist, pay grade E-4, for misconduct, effective 11 March 2009.

10.  On 7 May 2009, the battalion commander informed the company commander that he had denied the applicant's appeal of the NJP.  He provided his reasoning in an attached memorandum.  The memorandum indicated that he had reviewed the documentation and additional matters submitted by the applicant on 16 March 2009.  The battalion commander stated:

	a.  "His justification against the first charge, Disobeying an Order from a Field Grade Officer, is effectively the opposite of sworn statements of the event.  Even if his rebuttal points were taken as true and factored in, he received a lawful order from a Field Grade officer that cannot be set aside by any non-commissioned officer.  Leaving the clinic placed others in danger due to his impaired state.  Obviously, we expect our NCOs to act more responsibly and hold them to higher standards than a private.  This is more troubling when his years of service and experience are considered."

	b.  "Charge two, Drunk on Duty, is fully supported by historical behavior and a blood test taken.  Ambien does not cause the recipient's breath to smell like alcohol, nor does it explain his statement that he had a 'glass' of wine before his clinic appointment.  Here again, if his story about Ambien is correct, he should in no way be driving if he was as impaired as his own statement of rebuttal indicates."

	c.  "…not one aspect of the incidents or how his rebuttal is written leads me to believe he's learned any lesson or is of a caliber we expect in our non-commissioned officers.  A much more compelling defense would be simply to take responsibility for his own actions."

11.  On 7 May 2009, a second DA Form 2627 was initiated by the applicant's company commander.  It informed the applicant that he was considering him for NJP for his being found drunk while on duty as a wounded warrior on 11 March 2009.  The applicant was provided a period of 48 hours to consult with defense counsel and to decide what he wanted to do.   

12.  The DA Form 2627 indicates that on 7 May 2009 the applicant elected:

	a.   not to demand a trial by court-martial;

	b.  a closed hearing;

	c.  not to have a person speak on his behalf; and

	d.  to personally present matters in defense, mitigation, and/or extenuation.

13.  On 7 May 2009, in a closed hearing, the company commander, a field grade officer, found the applicant guilty of the offense.  The punishment is not annotated on the DA Form 2627.  The imposing commander indicated that the applicant was an E-4 or below at the start of the proceedings and that filing of the DA Form 2627 in the OMPF was not appropriate.  The applicant was advised of his right to appeal within 5 calendar days.
14.  On 7 May 2009, the applicant indicated that he would not appeal the NJP.

15.  Orders 166-1058, CAARNG, dated 15 June 2009, reduced the applicant to private, pay grade E-2, for misconduct, effective 7 May 2009.

16.  On 27 July 2009, the applicant was retired in pay grade E-2 due to a temporary physical disability.  He had completed 2 years, 11 months, and 6 days of creditable active duty service during this period.  

17.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 implements and amplifies Article 15, UCMJ.  It states that the basis for any set aside action is a determination that under all of the circumstances of the case the punishment has resulted in a clear injustice.  "Clear Injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.

18.  Army Regulation 27-10 provides guidance for setting aside the punishment imposed by NJP and restoration of rights, property and privileges.  The setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges or property affected by the portion of the punishment set aside are restored.  NJP is wholly set aside when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  

19.  Army Regulation 27-10 also provides 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.  Forfeitures imposed by a field grade commander may not be applied for more than 2 months.  The maximum
forfeiture of pay to which a Soldier is subject during a given month, because of one or more actions under Article 15, is one-half of the Soldier’s pay per month. 

20.  Under the UCMJ, the maximum punishment allowed for:

	a.  being drunk on duty is a punitive discharge, 9 months confinement, and total forfeiture of pay; and

	b.  disobeying a lawful order from a superior commissioned officer is a punitive discharge, 5 years confinement, and total forfeiture of pay.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his NJP should be set aside because he was not afforded the opportunity to appeal.  Furthermore, he contends that the punishment was too harsh.

2.  The evidence in this case suggests that both NJP's were properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized his rights.

3.  The evidence also suggests that he was afforded due process, in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting the NJP's.

4.  The applicant accepted both NJP's in lieu of demanding trial by court-martial.  He appealed the punishment of the first NJP to a higher authority, which was denied.  He elected not to appeal the punishment of the second NJP, which reduced him to pay grade E-2.  

5.  The applicant's reduction in pay grade and forfeitures of pay were within the regulatory limits of his commander.  Had the applicant been found guilty by court-martial, he could have received a much harsher sentence than he received as a result of NJP.

6.  The basis for any set aside action is a determination that under all of the circumstances of the case, the punishment has resulted in a clear injustice.  In this case, there is no evidence showing that either of the NJP's resulted in an injustice.  

7.  In view of the above, the applicant's request should be denied.

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)                                         AR20090020923





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ABCMR Record of Proceedings (cont)                                         AR20090020923



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