IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110009674 


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, that the nonjudicial punishment (NJP) he was given on 4 September 2009 be set aside, removed from his records, with restoration of all rights, privileges, and property related to this action. 

2.  The applicant states he received NJP while deployed in Iraq with the West Virginia Army National Guard (WVARNG).

   a.  He states he does not feel the NJP was correct in that the proper procedure was not observed.  He states he was not allowed character witnesses to testify on his behalf and the incident took place at a location other than the location where the hearing took place.  He adds he was not given all the evidence against him and LTC SXXXXXXXX thought he was lying to him which he could have proven otherwise if he had been shown Captain DXXXXX's statement.

	b.  He further states he believes the NJP was given in retaliation for filing an Inspector General (IG) complaint.  He states the incident occurred on 22 July 2009, he was punished by carrying an additional weapon.  He went to the IG on 4 August 2009, and the investigating officer was assigned 5 August 2009.

	c.  An investigation of the Article 15 will show Major TXXXXXXX knew the toy pistol was a joke and knew it was never presented as a real weapon.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period February 2009 to March 2010, a copy of his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), and Joint Forces Headquarters - WV Orders 134-629 reducing him in rank.
 
CONSIDERATION OF EVIDENCE:

1.  His records show that with prior active duty and ARNG service he most recently enlisted in the WVARNG on 5 March 2008.

2.  Orders 272-1, 99th Regional Support Command, dated 29 September 1998, promoted the applicant to sergeant, pay grade E-5, effective 1 October 1998.

3.  He was ordered to active duty service as a member of the WVARNG.  A DD Form 214 for the period 11 February 2009 through 7 March 2010 shows he served in Iraq during the period 21 April 2009 through 29 January 2010 in support of Operation Iraqi Freedom.

4.  On 30 August 2009, a DA Form 2627 was initiated by the applicant's unit commander.  His unit commander informed him that he was considering him for NJP for:

* through neglect missing movement of the 5 August 2009 flight which he was required in the course of duty to move
* being derelict in the performance of his duties in that he negligently failed to carry his assigned weapon

5.  The applicant was provided a period of 48 hours to consult with defense counsel and to decide what he wanted to do.  The DA Form 2627 indicates that on 4 September 2009 he elected:

* not to demand a trial by court-martial
* a closed hearing
* to have a person speak on his behalf
* to not present matters in defense, mitigation, and/or extenuation 

6.  On 4 September 2009, in a closed hearing, the company commander imposed a reduction in grade to specialist/E4 and 14 days of extra duty.  The imposing commander directed filing of the DA Form 2627 in the performance section of his Official Military Personnel File.  The applicant was advised of his right to appeal within 5 calendar days.

7.  On 4 September 2009, he appealed and did not submit additional matters.  The DA Form 2627 does not show the results of his appeal.
8.  Joint Forces Headquarters - WV Orders 134-629, dated 14 May 2010, reduced the applicant to specialist/pay grade E-4, for misconduct, effective 4 September 2009.

9.  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.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

10.  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.  

11.  Army Regulation 27-10 provides that the Soldier’s request for witnesses in defense, extenuation, or mitigation will be restricted to those witnesses reasonably available as determined by the imposing commander.  To determine whether a witness is reasonably available, the imposing commander will consider the fact that neither witness nor transportation fees are authorized.  Reasonably available witnesses will ordinarily include only personnel at the installation concerned and others whose attendance will not unnecessarily delay the proceedings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant provides an explanation of an incident regarding a toy pistol and how it was a joke.  Notwithstanding the alleged appointment of an investigating officer regarding his alleged misconduct 1 day after he filed an IG complaint, the applicant has provided insufficient evidence to support his contentions he was given NJP as retaliation for filing an IG complaint or that improper procedures were used for the proceedings which would support setting aside his NJP.  Furthermore, in the appellate process he could have submitted additional matters that he was unable to provide during his NJP hearing, but elected not to do so.  Additionally, the DA Form 2627 shows the misconduct for which he received NJP was for through neglect missing movement and for failing to carry his assigned weapon; there is no mention of an incident about a toy pistol.

2.  The evidence in this case suggests that the NJP was 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.

4.  He accepted NJP in lieu of demanding trial by court-martial.  He appealed the punishment of the NJP to a higher authority.  While the results of this appeal are not available, it is reasonable to presume that the NJP was upheld.  His punishment was within the regulatory limits of his commander.

5.  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 the NJP resulted in an injustice.  

6.  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)                                         AR20110009674



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ABCMR Record of Proceedings (cont)                                         AR20110009674



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