BOARD DATE:	  11 October 2011

		DOCKET NUMBER:  AR20110015388 


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) imposed against him on 13 June 2011 be set aside and that all rights and privileges be restored. 

2.  The applicant states that he had a hearing on 10 June 2011 and his commander found him guilty before his hearing started.  He goes on to state that the commander would not consider his statements because they were not notarized; however, had the commander looked at his evidence he would not have imposed punishment against him.  He further indicated the statements against him were provided by persons under the influence of alcohol and the commander had no evidence that he committed a crime. 

3.  The applicant provides copies of his appeal and rebuttal to the NJP, as well as written statements, sworn statements, a copy of his notification of separation board proceedings, the results of a family advocacy case review committee, and emails.

CONSIDERATION OF EVIDENCE:

1.  After serving 4 years in the Marine Corps the applicant enlisted in the Regular Army on 3 November 2004 for a period of 4 years and training as a cable installer/maintainer. 


2.  On 24 October 2007, he reenlisted for a period of 6 years, training as a human resources information systems management specialist and a selective reenlistment bonus.  He was promoted to the rank of sergeant on 1 December 2008.

3.  On 13 June 2011, while stationed in Korea with his family, NJP was imposed against him for committing an assault upon his spouse and causing a breach of the peace by wrongfully engaging in a physical and verbal altercation with his spouse and assaulting her on a public street.

4.  The applicant did not demand trial by court-martial, he requested a closed hearing, a person to speak in his own behalf, and he submitted matters in defense, extenuation, or mitigation.

5.  The battalion commander found him guilty of all specifications and reduced him to pay grade E-4, a forfeiture of $1,162 pay for 2 months (suspended until
7 December 2011), extra duty and restriction for 30 days, and an oral reprimand. The imposing officer directed that the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) be filed in the restricted section of his Official Military Personnel File (OMPF).  However, the applicant already had a record of NJP filed in the restricted section of his OMPF and thus it was filed in the performance section of his OMPF. 

6.  The applicant elected to appeal the punishment and submit additional matters.  His appeal was denied by the brigade commander on 20 June 2011.

7.  Meanwhile, on 16 June 2011, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense based on his disciplinary record, aggravated assault on his spouse, and breach of the peace.

8.  After consulting with counsel the applicant exercised his rights and elected to appear before an administrative separation board.  However, on 20 July 2011, the applicant submitted a request for a conditional waiver in which he agreed to waive his appearance before an administrative separation board in return for at least a general discharge. 

9.  On 28 July 2011, the appropriate authority (a lieutenant general) approved his request for a conditional waiver and directed that he be discharged under honorable conditions.

10.  Accordingly, he was discharged on 16 August 2011 under the provisions of Army Regulation 635-200, paragraph 14-12C, for misconduct, commission of a serious offense with a general discharge.  He had served 6 years, 9 months, and 14 days of active service in the Army for a total of 10 years, 9 months and 14 days of total active service. 

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 statements 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 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, 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that NJP was unjustly imposed against him and that it should be set aside and all rights and privileges restored has been noted and appears to lack merit.


2.  The evidence of record confirms that the applicant accepted adjudication of the charges pending against him by Article 15.  The commander administering the Article 15 proceedings determined the applicant committed the offenses in question during a closed Article 15 hearing after considering all the evidence submitted by the applicant.  

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.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for a closed hearing.  He requested the opportunity to present matters in rebuttal at the hearing, and to have someone speak on his behalf.  After considering the available evidence, the applicant's commander found him guilty of the alleged misconduct.  

4.  The Article 15 regulatory standard further requires the commander to be convinced beyond a reasonable doubt before he found the applicant committed the offense, which is the same high standard required of courts-martial panels and judges sitting alone as triers of fact prior to entering findings of guilt.  In this case, the applicant has not submitted sufficient evidence to show that his rights were in any way violated or to show that the validity of the Article 15 in question is in any way questionable and should be set aside.  Therefore, the regulatory burden of proof necessary to support removal of the applicant's Article 15 has not been satisfied in this case.  

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)                                         AR20110015388



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ABCMR Record of Proceedings (cont)                                         AR20110015388



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