IN THE CASE OF:	  

		BOARD DATE:  1 March 2012

		DOCKET NUMBER:  AR20110017808 


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 two nonjudicial punishments (NJP) that he received be set aside and that his general discharge be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, he suffered from service-connected obstructive sleep apnea throughout his period of military service and he was not properly medically examined until the end of his period of service.  He further states he received NJP while waiting for the results of his sleep study.

3.  The applicant provides:

* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ)
* Dental Patient Medical History form

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 November 2005.  He completed training and he was awarded military occupational specialty (MOS) 35P (Cryptologic Linguist).  The highest rank/grade he attained while serving on active duty was private first class/E-3; however, he held the rank/grade of private/E-1 at the time of separation.

2.  The applicant’s record contains three event-oriented developmental counseling statements provided to the applicant between 5 September and 
18 September 2007.  Each counseling session pertains to the applicant’s inability to be on time at his appointed place of duty.  

3.  On 1 October 2007, at an open hearing, he waived his rights to a trial by court-martial and accepted NJP under the provisions of Article 15 of the UCMJ for six instances of failing to go at the time prescribed to his appointed place of duty.  He elected not to appeal or submit additional matters.  His punishment was reduction to pay grade E-2 and a forfeiture of $340.00 pay (both suspended if not vacated before 28 March 2008).  On 18 March 2008, the suspended portion of his punishment was vacated after he failed to report to his place of duty.  

4.  The applicant’s record contains five additional event-oriented developmental counseling statements provided to the applicant between 6 November 2007 and 18 March 2008.  Each counseling session pertains to the applicant’s inability to be on time at his appointed place of duty.  

5.  On 21 March 2008, at a closed hearing, he waived his rights to a trial by court-martial and accepted NJP under the provisions of Article 15 of the UCMJ for two instances of failing to go at the time prescribed to his appointed place of duty.  He elected not to appeal or submit additional matters.

6.  On 12 August 2008, the applicant was notified of initiation of separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 13, due to unsatisfactory performance after he repeatedly failing to go to his designated place of duty despite attempts at rehabilitation and NJP.  

7.  On 14 August 2008, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge, and of the rights available to him. 

8.  On 28 August 2008, the separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 13, and directed that he be issued a general discharge. 

9.  On 9 September 2008, the applicant was discharged accordingly.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed 2 years, 9 months, and 12 days of creditable active military service with no lost time.

10.  On 21 July 2010, the applicant was informed his application to the Army Discharge Review Board for an upgrade of his discharge was denied.

11.  The applicant provides a dental patient medical history form dated 7 August 2008.  “I have sleep apnea” is written in the dentist comments section of this form. 

12.  The applicant’s separation medical examination records contain a Report of Medical Assessment Form, dated 25 July 2008.  In Item 15 (Do you have any conditions which currently limit your ability to work in your primary military specialty or require geographic or assignment limitations?) the applicant responded “No” and authenticated the form with his signature.

13.  The applicant’s separation medical examination, dated 29 July 2008, contains a DD Form 2807-1 (Report of Medical History).  Item 30a (Examiner’s Summary and Elaboration of All Pertinent Data – Comments) contains the statement “diagnosed with obstructive sleep apnea per sleep study 2 July 2008 pending CPAP (continuous positive airway pressure).”

14.  His separation medical examination records contain a DD Form 2808 (Report of Medical Examination), dated 29 July 2008, which shows the applicant was medically qualified for service or separation.  

15.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  Chapter 13 of this regulation provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures, to preserve a Soldier'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 less time and personnel than trial by court-martial.

18.  Army Regulation 27-10, paragraph 3-28 describes setting aside and restorations. This 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.  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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his general discharge for unsatisfactory performance should be upgraded and the two NJP's that he received should be set aside.

2.  The evidence of record shows the applicant's duty performance was tarnished by multiple instances of NJP involving his inability to go to his appointed place of duty as well as being unresponsive to counseling by members of his chain of command.  Accordingly, his chain of command initiated separation action against him.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would jeopardize his rights.  His general discharge is commensurate with his overall record of military service.  


3.  There is no evidence in the available records and the applicant failed to submit any evidence which shows he suffered from a medical condition that caused his disciplinary problems or limited his ability to perform in his grade and MOS.  A diagnosis of obstructive sleep apnea does not excuse his misconduct.
  
4.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

5.  The evidence of record confirms the commanders who administered the two NJP proceedings determined the applicant committed the offenses in question during open and closed hearings respectively.  By law and regulation, before finding a Soldier guilty during such proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  The evidence confirms in each instance the applicant waived his right to a trial by court-martial and elected not to appeal the punishment.  His NJP proceedings were conducted in accordance with law and regulation.  There is no evidence and the applicant provides insufficient evidence to show the DA Form(s) 2627 were untrue or unjust. 

6.  The ABCMR does not normally reexamine issues of guilt or innocence involving NJP.  This is the imposing commander’s function and it will not normally be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  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 that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  There is none in his 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)                                         AR20110017808



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ABCMR Record of Proceedings (cont)                                         AR20110017808



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