BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100001132


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 restoration of her rank to sergeant (SGT/E-5) and all back pay and allowances due as a result.

2.  The applicant states:

   a.  she received unauthorized non-judicial punishment (NJP) on 25 January
and 18 June 2008, for violating a “no contact” order, for which she subsequently completed all punishments minus the suspended forfeitures;

   b.  her new battalion commander discovered the former commander, who
imposed the NJP actions in question, did not have the authority to administer NJP because he did not have a valid “assumption of command” order for the battalion;

   c.  in December 2008, her company commander initiated a summarized NJP
action against her for a third offense;

   d.  the company commander was informed of the illegality regarding the applicant's two prior NJP actions, the resulting “set aside punishments,” and was told that all three charges would be combined and administered in one field grade NJP by the battalion commander;

   e.  on 3 February 2009, the battalion commander set aside the punishment in the prior two NJPs that provided for the applicant’s reductions, and none of the punishments that were already served;
   
f.  on 3 February 2009, the battalion commander administered an NJP against
the applicant for the new offense and added the original offenses listed on the first two NJPs;

   g.  in 2009, upon being reassigned to Fort Leavenworth, Kansas and learning
the Soldier with whom she was issued the “no contact” order and was likewise administered two NJPs was able to retain his SGT rank after his NJP actions were set aside, the applicant contacted the defense counsel for assistance; and
   
   h.  the initial two “no contact” violations should not have been added to the third NJP action.  The summarized Article 15 should have contained only the third offense, and she would not have been reduced in rank.

3.  The applicant provides the following:

* self-authored statement
* two letters of support
* three DA Forms 2627 (Record of Proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ)
* two DA Forms 2627-2 (Record of Supplementary Action under Article 15, of the UCMJ)
* character reference statement

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military record shows she is currently serving on active duty in the rank of specialist four (SP4/E-4) in military occupational specialty (MOS) 31E (Internment/Resettlement Specialist) at Fort Leavenworth, Kansas.

2.  On 25 January 2008, while serving as a SGT in Mannheim Germany, the applicant accepted NJP for violating a lawful order not to have contact with SGT_______, on 7 December 2007.  The resultant punishment for this offense was reduction to SP4, forfeiture of $974.00 for one month (suspended), and 45 days restriction and extra duty.

3.  On 18 June 2008, while serving as a SP4 in Mannheim, Germany, the applicant accepted NJP for violating the same aforementioned no contact order on 20 May 2008.  The resultant punishment is not reflected on the DA Form 2627 issued on 18 June 2008.

4.  Both the 25 January and 18 June 2008 NJP actions were imposed by the applicant’s battalion commander, who held the rank of major (MAJ) at that time.

5.  On 3 February 2009, the new battalion commander took the following action:

a. issued a DA Form 2627-2 to set aside the applicant’s reduction to SP4
imposed on 25 January 2008, indicating the reduction was prohibited in accordance with (IAW) Army Regulation 27-10, paragraph 3-19(d) and Army Regulation 600-8-19, paragraph 1-9g;

b. issued a DA Form 2627-2 to set aside the applicant’s reduction to private
(PVT/E-1) imposed on 18 June 2008, indicating the reduction was prohibited IAW Army Regulation 27-10, paragraph 3-19(d) and Army Regulation 600-8-19, paragraph 1-9g; and

c. issued the applicant a third NJP for:

* violating a lawful command (no contact order) on 7 December 2007
* violating a lawful command (no contact order) on 20 May 2008
* using disrespectful language towards a noncommissioned officer on 
4 December 2008

6.  On 6 February 2009, the applicant accepted NJP issued on 3 February 2009. The resulting punishment was a reduction to SP4, a forfeiture of $1,063.00 pay for 1 month (suspended), 45 days of extra duty and restriction (suspended), and an oral reprimand.

7.  The applicant provides a character reference statement from an Army MAJ who states the applicant is a well liked quiet professional who quickly excelled in the Army making the rank of SGT in 2 years and 11 months of her military service.  He states the applicant briefly lost her way, but has since accepted punishment for her actions, soldiered on, and rededicated herself to her career, the Army, and her fellow Soldiers.

8.  The applicant provides a statement from an Army captain (CPT) who indicates that during the period in question:

a. she issued the applicant a summarized Article 15 for racist comments
made in the workplace;

b.  a legal office official told her the applicant was currently pending a field 
grade Article 15 and that the summarized Article 15 could not be administered separately;

c. the applicant’s field grade Article 15 would be amended to include
the inappropriate language offense; and
d. she only intended the applicant undergo a summarized Article 15 for the 
one offense of making racist comments in the work place and not a field grade Article 15 for this offense.

9.  The applicant provides a statement from a Judge Advocate General (JAG), Defense Counsel, in the rank of CPT in which she primarily reiterates and corroborates the applicant’s claim.  She also indicates:

a. the applicant ‘s SGT/E-5 rank and grade should be restored because she
was improperly and illegally administered a field grade Article 15 in February 2009;

b. the applicant’s command, while properly restoring her rank to SGT on 
3 February 2009, did not set aside any of the other adjudged punishments which the applicant had already served;

c. the command apparently restored the applicant’s rank, only to reduce her
again for the same offenses, as she was given NJP for an additional offense and those same offenses on 3 February 2009;

d. cites Army Regulation 27-10, paragraph 3-10 regarding the prohibition of
double punishment under Article 15 of the UCMJ and indicates that once punishment has been adjudged, that setting aside or suspending any resulting punishment is irrelevant when administering punishment a second time for the same offense; and

e. 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.  Paragraph 3-10 contains guidance on prohibiting double punishment.  When NJP has been imposed for an offense, punishment may not again be imposed for the same offense under Article 15.  Once punishment has been imposed, it cannot be increased upon appeal or otherwise.

10.  Army Regulation 27-10, paragraph 3-28 of the military justice regulation provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.
11.  Army Regulation 600-8-19 (Enlisted Promotions), paragraph 10-2 provides reduction authorities.  Table 10-1 states that field grade commanders of any organization in the rank of lieutenant colonel (LTC) or higher are authorized to reduce enlisted Soldiers in the rank of staff sergeant (SSG) and SGT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her rank should be restored to SGT.

2.  The evidence of record confirms the applicant was improperly administered NJP on 25 January and 18 June 2008, as evidenced by the two DA Forms 
2627-2 on file “set aside” actions.  Accordingly, these records of NJP should be removed from the applicant’s record at this time.

3.  The evidence of record also confirms that while the applicant’s command properly restored her rank to SGT on 3 February 2009, other punishments which had already been served (45 days of restriction and extra duty) were not set aside.  Subsequently, the command administered NJP a third time for the same infractions listed on the previously issued 25 January and 18 June 2008 NJPs and included one new infraction and as a result she accepted that punishment on 6 February 2009, and was again reduced to SP4.

4.  By regulation, when NJP has been imposed for an offense, punishment may not again be imposed for the same offense under Article 15.  Once punishment has been imposed, it cannot be increased upon appeal or otherwise.  Therefore, the applicant was punished twice under the provisions of Article 15 of the UCMJ for the same offense.  Thus, the NJP administered on 6 February 2009 should also be set aside and removed from the applicant’s record and her rank restored to SGT.  Further, the applicant should be provided all back pay and allowances due as a result of this correction.

BOARD VOTE:

____x__  ___x_____  ____x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  setting aside and removing from her Official Military Personnel File the    25 January 2008, 18 June 2008, and 6 February 2009 records of non-judicial punishment; and

   b.  restoring her rank to SGT and providing her all back pay and allowances due as a result of this correction.




      _______ _   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)                                         AR20100001132



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ABCMR Record of Proceedings (cont)                                         AR20100001132



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