IN THE CASE OF:	  

		BOARD DATE:  12 January 2012

		DOCKET NUMBER:  AR20110011746 


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:

	a.  the punishment imposed on 18 September 2008 by a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be rescinded;

	b.  his rank/grade be restored to staff sergeant (SSG)/E-6; and

	c.  he receive back pay and all other military benefits for the difference between sergeant (SGT)/E-5 and SSG/E-6 from the date of reduction.

2.  The applicant states:

	a.  on 18 September 2008 he received an Article 15 for violating an order which suspended his on-post driving privileges.  Unknown to the commander who imposed the Article 15, limited on-post driving privileges had been restored in April 2008.  Due to a clerical error, the memorandum reinstating limited driving privileges was never transmitted to the Fort Drum (NY) Provost Marshal Office (PMO) or the security personnel at the post gate.  As a result, when he attempted to enter the Fort Drum main gate on 29 July 2008 after dropping his child off at day care, he was erroneously cited for driving while his on-post privileges were suspended.

	b.  after being stopped at the main gate, he immediately contacted the Department of Emergency Services (DES) and the Office of the Staff Judge 


Advocate (OSJA) at Fort Drum to obtain a copy of the reinstatement memorandum.  Unfortunately, neither the DES nor the OSJA were able to locate a copy.  When he stood before the commander in September 2008, he had no evidence to support his claim that limited driving privileges had been restored and that he was not guilty of driving on-post with suspended driving privileges.  The punishment imposed was reduction to E-5 and forfeiture of $1,123.00 per month for 1 month, both suspended to be automatically remitted if not vacated before 12 March 2009; and extra duty for 45 days.

	c.  on or about 3 October 2008, he was involved in an incident which resulted in him being arrested for disorderly conduct.  He disputed the characterization of the basis for the arrest and charges were never brought against him.  However, he received counseling by his chain of command, the suspension of his reduction in rank was vacated, and he was reduced from SSG to SGT.

	d.  after months of phone calls and much effort, he finally located a copy of the memorandum reinstating his driving privileges.

	e.  the Article 15 underlying his reduction would never have been imposed if the commander had known his driving privileges had been reinstated.  Therefore, his rank would not have been reduced had the Army been able to locate the memorandum reinstating his driving privileges at the time of his Article 15.

3.  The applicant provides:

* DA Form 2627
* Request and granting of driving privileges
* Witness statements
* Counseling statement

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 February 2004 for a period of 3 years.

2.  On 15 September 2007, the applicant, then an SSG, was charged with drunk driving and his on-post driving privileges were suspended for a period of 1 year.

3.  On 25 February 2008, in a self-authored memorandum through his chain of command, to the Fort Drum Garrison Commander, he requested restricted driving privileges in order to enable him to transport his daughter to day care and get to his place of duty.

4.  A 10th Mountain Division and Fort Drum Routing Slip, dated 4 March 2008, show the applicant's request for restricted driving privileges was to be staffed through/to:

* the applicant's company commander
* the applicant's battalion commander
* the Commander, 3rd Brigade Combat Team
* the Garrison Command Sergeant Major
* the Garrison Commander (the decision authority)
* the Staff Judge Advocate
* to the Director of Emergency Services

5.  The routing slip only shows coordination through the Commander,
3rd Brigade Combat Team; there is no evidence the request was ever seen by the Garrison Command Sergeant Major or acted upon by the Garrison Commander, or reviewed by the Staff Judge Advocate.

6.  On 29 July 2008, the applicant was stopped by law enforcement personnel as he attempted to enter Fort Drum in his privately-owned vehicle (POV).  He was told his name was on a list of personnel with suspended driving privileges and he was ordered to park his POV.  The incident was reported through law enforcement channels to his chain of command.

7.  On 10 September 2008, the applicant was offered nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for violating a lawful order not to drive on-post for 1 year.  In a closed hearing on 18 September 2008, he was found guilty for his misconduct.  His punishment consisted of a reduction from SSG to SGT and a forfeiture of $1,123.00 pay per month for
1 month, both suspended, to be automatically remitted if not sooner vacated before 12 March 2009.  He was ordered to perform extra duty for 45 days.  The applicant did not appeal his punishment.

8.  On 3 October 2008, the applicant was arrested by the Watertown (NY) Police Department for disorderly conduct.  He was released to the Fort Drum Military Police and detained pending unit notification.  As a result of this incident, his suspended reduction from SSG to SGT was vacated.

9.  The applicant provides an undated and unsigned memorandum from the Garrison Commander to him granting him restricted on-post driving privileges.

10.  On 25 October 2010, the applicant was honorably discharged for immediate reenlistment.  He reenlisted on 26 October 2010 for a period of 2 years in the rank of SGT.
11.  On 26 July 2011, NJP was imposed against the applicant for violating a lawful general regulation (wrongfully making repeated unwelcome verbal comments of a sexual nature and unwelcome physical contact of a sexual nature with a private first class); and violating a lawful general regulation (wrongfully making repeated unwelcome comments of a sexual nature to a private first class).  His punishment consisted of a reduction to specialist (SPC)/E-4, forfeiture of $1,169.00 pay per month for 2 months (suspended), extra duty for 45 days (suspended), and restriction for 45 days.

12.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  It states a commander will personally exercise discretion in the NJP process, evaluate the case to determine whether proceedings under Article 15 should be initiated, and determine whether the Soldier committed the offense where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial.  It states the authority to impose NJP charges a commander with the responsibility of exercising the commander’s authority in an absolutely fair and judicious manner.  It states the imposing commander is not bound by the formal rules of evidence before courts-martial.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests rescission of his 18 September 2008 record of NJP and restoration of his rank and all associated rights and privileges.

2.  The applicant contends his on-post driving privileges, suspended on 15 September 2007 for drunk driving, were restored in April 2008.  He states he was therefore innocent of the charge for which he received the NJP in September 2008.  As proof, he provides an undated and unsigned memorandum from the Garrison Commander granting him restricted driving privileges.

3.  The applicant also contends the incident of 3 October 2008 in which he was arrested by the Watertown Police Department was never adjudicated; therefore, it should not have been used to vacate his suspended reduction from SSG to SGT.

4.  The applicant's arguments and evidence are not persuasive.  First, he submits a routing slip that shows his request for restricted privileges never reached the Garrison Command Sergeant Major or the Garrison Commander for a decision.  He further submits an undated and unsigned memorandum from the Garrison Commander granting him restricted on-post driving privileges which is unacceptable.


5.  He then alleges his arrest for disorderly conduct was never adjudicated; therefore, he should never have been subject to vacation of his suspended reduction.  This argument is also not accepted.  Whether or not he was ever adjudicated for the disorderly conduct charge, he nonetheless failed to maintain good conduct during the period of his suspended punishment.  Therefore, the  vacation of his suspended reduction was proper.

6.  After his reenlistment, the applicant again received NJP, this time for unwelcome verbal comments and physical contact of a sexual nature with a junior female enlisted Soldier.  As a result, he was reduced from SGT to SPC.

7.  In view of the foregoing, there is no basis for granting his requested relief.

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)                                         AR20110011746



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ABCMR Record of Proceedings (cont)                                         AR20110011746



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