IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100013136 


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, in effect, correction of his records to show he was not reduced in rank from Staff Sergeant (SSG)/E6 to Sergeant (SGT)/E5. 

2.  The applicant states the "Military Justice Command Disciplinary Options for the Reserve Components (RC) does not authorize reduction for a single act of misconduct, that Active Guard Reserve (AGR) [Soldiers] are entitled to a reduction board.  The U.S. Army Recruiting Command (USAREC) Pamphlet 
600-14 states an E6 cannot be reduced by an Article 15.

3.  The applicant provides a copy of his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), a Defense Counsel Memorandum for the ABCMR, an extract of Military Justice Command Disciplinary Options for the RC, page 11 of Army Regulation 27-10 (Military Justice), Army Regulation 140-30 (Active Duty in Support of the United States Army Reserve (USAR) and AGR Management Program), and U.S. Army Human Resources Command-St. Louis AGR Program Commanders' Guide for Handling Substandard Soldiers.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the USAR on 23 December 1986.  He completed initial entry training and he was awarded the military occupational specialty of combat signaler.  He has served continuously through reenlistments and an extension of enlistment.  The highest rank he attained while serving was SSG/pay grade E-6.
2.  He was ordered to active duty in an AGR status in the rank of SGT in 2001 and he remains in an AGR status.  He was promoted to SSG on 1 April 2004.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 September 2009, for assaulting a noncommissioned officer of the U.S. Army by grabbing her arm and twisting it behind her back.  The punishment included reduction from E6 to E5.

4.  On 8 October 2009, his brigade commander denied his appeal, stating, "The proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed."

5.  The applicant provided a copy of a Defense Counsel Memorandum for the ABCMR, dated 13 November 2009, indicating the applicant's reduction was improper based on USAREC Pamphlet 600-14.  The Defense Counsel further states the command position was based on legal advice indicating Army Regulation 600-8-19 stipulates only that sergeant first class and above may not be reduced under the provisions of Article 15, UCMJ and that the language in USAREC Pamphlet 600-14 was an administrative error.

6.  Military Justice Command Disciplinary Options for the RC, paragraph 2b (5)(d)ii (Nonjudicial Punishment under Article 15, UCMJ, Reduction in Grade), dated March 2001 states in pertinent part "For AGR Soldiers, only HQDA can reduce an E-6 and up."  The cover of this document contains the statement, "This is intended to be a guide, not a substitute for the applicable regulations."

7.  USAREC Pamphlet 600-14 states 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.

8.  Army Regulation 600-8-19, (Personnel-General, Enlisted Promotions and Reductions), Chapter 10, Reductions in Grade, Section I, Reduction Management:

   a.  Paragraph 10-1b states a reduction board is required for Soldiers in the grade of SGT through SGM for any reduction for misconduct (civil conviction) under paragraph 10–3 (except under table 10–2) and for inefficiency under paragraph 10–5.
   
	b.  Paragraph 10-1h states for UCMJ, Article 15, see Army Regulation 27-10.  It further states that Soldiers in the grades sergeant first class through command sergeant major may not be reduced under this provision.

9.  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.

10.  Army Regulation 27-10, paragraph 3-19b states pursuant to the authority of the Secretary as set forth in paragraph 5a, part V, Manual for Courts-Martial (MCM), the following additional rules and limitations concerning the kinds and amounts of punishment authorized under Article 15, UCMJ apply:  The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander.  For the purposes of this regulation, the imposing commander or any subordinate commander has "promotion authority" within the meaning of Article 15(b) if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade (Army Regulation 600-8-19).

11.  Army Regulation 27-10, Table 3-1 shows that the maximum punishment for enlisted Soldiers in the ranks of SGT and SSG is one grade in peacetime and only if imposed by a field grade commander of a unit authorized a commander in the grade of lieutenant colonel (LTC) or higher.  Reduction of RC Soldiers of grade E-6 and higher is authorized only if the grade from which the Soldier is reduced is within the promotion authority of the officer imposing the reduction.

12.  Army Regulation 600-8-19, chapter 3 governs the SGT and SSG promotion system for Active Army and USAR AGR Soldiers.  It states field-grade commanders in units authorized a commander in the grade of LTC or higher have promotion authority to the grades of SGT and SSG.

13.  Army Regulation 140-158 was superseded by Army Regulation 600-8-19, dated 21 July 2006.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was inappropriately reduced was carefully considered.  However, Army Regulation 140-158 was superseded prior to his reduction to SGT/E5, the Military Justice Command Disciplinary Options for the RC is only a guide (not regulatory policy), the basis for his reduction did not require a reduction board, and USAREC Pamphlet 600-14 is not Department of the Army policy and appears to have an administrative error in regards to SSG reduction authority.

2.  Army Regulation 600-8-19 clearly states that Soldiers in the grades of sergeant first class through command sergeant major may not be reduced under the UCMJ, Article 15.  As such, he has not provided sufficient evidence supporting his contentions that the command did not have the authority or otherwise improperly reduced him from SSG to SGT.

3.  The applicant's nonjudicial punishment action was imposed in compliance with applicable laws, regulations and policies.  Based on the nature and severity of the offense, the field grade nonjudicial punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any mitigating circumstances, or substantive violation of any of the applicant's rights.

4.  In summary, the applicant was given due process throughout his nonjudicial punishment proceedings.  The fact that he disagrees with the punishment imposed is understandable.  However, his disagreement does not form the basis of an error or injustice which would warrant restoring the applicant's rank.

5.  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)                                         AR20100013136



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ABCMR Record of Proceedings (cont)                                         AR20100013136



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