IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110012657 


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 that her nonjudicial punishment (NJP)  be set aside, that all rights and privileges be restored, that the Record of NJP (DA Form 2627) be expunged from her record, and that she be advanced to the pay grade of E-4.

2.  The applicant states that NJP was unjustly imposed against her for failure to go to her place of duty; however, the reason she did not report to work was because of a medical condition that caused her to be randomly sick and caused her to sleep through six alarms.  She goes on to state that she was subsequently diagnosed as having Lupus which was the cause of the NJP.  She further states that she entered the Army in the pay grade of E-3 and was never advanced beyond that pay grade despite her numerous inquiries.  She also states that Army Regulation 600-8-19 was not adhered to because it provides for automatic advancements in grade and had it been followed she would have been promoted to the pay grade of E-4 in December 2009. 

3.  The applicant provides a one-page statement explaining her application, a partial copy of her DA Form 2627, a copy of her Enlisted Record Brief (ERB), and a copy of a DA Form 4187 (Personnel Action) advancing her to the pay grade of E-3 on 1 September 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in the pay grade of E-3 on 22 January 2008, for a period of 4 years. 
2.  She completed her training at Fort Jackson, South Carolina and was assigned to Hunter Army Airfield, Georgia.  

3.  The applicant’s commander notified her that he was considering whether she should be punished under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to her place of duty.  After being afforded the opportunity to consult with counsel the applicant elected not to demand trial by court-martial.  She also elected to request a closed hearing and indicated that matters in defense, mitigation, or extenuation would not be submitted. 

4.  On 5 January 2009, NJP was imposed against the applicant for failure to go to her place of duty.  Her punishment consisted of a reduction to the pay grade of  E-2, a forfeiture of $352.00, and extra duty for 14 days.  

5.  On 1 September 2010, the applicant was advanced back to the pay grade of E-3.  

6.  On 20 April 2011, the applicant’s commander notified her that he was initiating action to separate her from the service under the provisions of Army Regulation 635-200, paragraph 5-8 due to parenthood.  He cited as the basis for his recommendation that the applicant was a single parent and her parental obligations interfered with her ability to fulfill her military responsibilities.  She was unable to present a workable family care plan.

7.  After consulting with counsel the applicant acknowledged that she understood her rights and that she would submit a statement in her own behalf.  A copy of that statement is not present in the available records. 

8.  On 29 April 2011, the appropriate authority approved the recommendation for discharge and directed that her service be characterized as honorable.

9.  Accordingly, she was honorably discharged in the pay grade of E-3 on 17 May 2011 under the provisions of Army Regulation 635-200, paragraph 5-8, due to parenthood.  She had served 3 years, 3 months, and 26 days of active service.

10.  A review of her official records fails to show that the DA Form 2627 is filed in her records.  Accordingly, there is no basis to further address the issue of expunging it from her records in these proceedings.

11.  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 3-16d(4) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  

12.  Paragraph 3-18 of the military justice regulation contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates the Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  In addition, it states that the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, to an open hearing, and to examine available evidence.  

13.  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. 

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing the promotion and reduction of Army enlisted personnel.  Eligibility criteria for advancement to E-3 is 12 months time in service (TIS) and 4 months time in grade (TIG).  Eligibility for advancement to E-4 is 24 months TIS and 6 months TIG.  Any Soldier reduced must be fully qualified (without waiver) for promotion to the next higher grade.  If a unit commander elects not to recommend a Soldier for promotion on the automatic promotion date, then the commander will submit a DA Form 4187 denying the advancement.  Commanders must initiate action of some type to stop automatic advancements and unit commanders must approve advancements to the pay grade of E-4.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant that the NJP should be set aside and that the DA Form 2627-1 should be removed from her record was carefully considered.   However, there is insufficient evidence to support granting the requested relief.  
2.  The evidence of record confirms that the applicant accepted adjudication of the charge pending against her by Article 15.  The commander administering the Article 15 proceedings determined the applicant committed the offense in question during a closed Article 15 hearing based on the applicant’s request. 

3.  By regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses which is the same high standard required of court-martial panels and judges sitting alone as triers of fact prior to entering findings of guilt.  
The evidence of record confirms the applicant waived her right to a trial by court-martial and opted for a closed hearing.  After considering the available evidence, the applicant's commander found her guilty of the alleged misconduct. 

4.  Although the applicant contends that she was diagnosed as having Lupus and that it was the cause of her receiving the contested NJP, she has submitted no evidence to support this contention.  Additionally, there is no evidence in the available records to show that she submitted any such evidence to her commander or that she subsequently appealed to a higher or succeeding commander to have the NJP set aside.  Accordingly, there is no basis to set aside the NJP.

5.  The applicant’s contention that she should have been automatically advanced to the pay grade of E-4 based on her TIS and TIG has been considered and also appears to lack merit.   

6.  While normally Soldiers are identified by the Enlisted Advancement Report and are automatically advanced to the pay grade of E-2 through E-4, unless advanced sooner by the commander, once an individual is reduced in grade they are no longer automatically advanced on the Enlisted Advancement Report and action by the appropriate commander to effect the next promotion is required.  Accordingly, the commander’s assessment of the individual’s overall performance and demonstrated potential become more in important in determining whether an individual is deserving of a promotion.  It should also be noted that even when automatic advancements are in effect, a commander can stop such advancements when he or she deems that the Soldier is not deserving of advancement.  In either case, the decision rests with the unit commander.

7.  Unfortunately, there is insufficient evidence in this case to determine why the applicant was not advanced sooner and in the absence of such evidence, it must be presumed that the applicant’s commander did not deem her deserving of advancement.  Accordingly, there appears to be no basis to second-guess the chain of command without sufficient evidence.

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)                                         AR20110012657





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ABCMR Record of Proceedings (cont)                                         AR20110012657



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