BOARD DATE:	  11 December 2012

		DOCKET NUMBER:  AR20120011177 


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 the nonjudicial punishment (NJP) imposed against him on 27 May 2009 be set aside, removed from his official records, and all rights and privileges restored, including his rank/grade of sergeant (SGT)/E-5.

2.  The applicant states the NJP was unjustly imposed against him for an offense he was not guilty of and despite his appeal, it was denied.  He goes on to state that separation proceedings were initiated to discharge him from the service because of the incident for which NJP was imposed and the administrative separation board exonerated him of the offense.  However, when he appealed the punishment his appeal was again denied.  He goes on to explain the punishment imposed against him resulting in his being reduced to specialist (SPC)/E-4 has imposed a financial hardship on him and his family.

3.  The applicant provides:

* the subject DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)
* an email from his counsel
* his appeal and the responses received
* a letter to his congressional representative
* his administrative separation board proceedings
* a recommendation for discharge under Army Regulation 635-200, paragraph 14-12
* a promissory note to the American Red Cross
* his wife's Certificate of Death
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 12 February 1999 for a period of 4 years and training as a motor transport operator.  He served until he was honorably released from active duty on 11 February 2003 due to the expiration of his term of service.

2.  He again enlisted in the RA on 23 February 2004 for a period of 4 years in the rank/grade of SPC/E-4 and assignment to Fort Eustis, VA.

3.  On 21 September 2007, he reenlisted for a period of 6 years and a selective reenlistment bonus.  On 1 January 2008, he was promoted to the rank of sergeant (SGT).

4.  On 27 May 2009, NJP was imposed against him for assaulting his spouse by holding a knife to her throat and placing a duffel bag over her head.  His punishment consisted of a reduction to SPC/E-4, extra duty, and restriction.  The imposing commander directed the record of NJP be filed in the restricted section of the applicant's Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).  The NJP indicates a military police report of the incident and a sworn statement from a noncommissioned officer (NCO) were used as allied documents.

5.  The applicant appealed the punishment to the next higher commander and, on 4 July 2009, his appeal was denied.

6.  On 5 March 2010, the applicant was referred to an Enlisted Administrative Separation Board to consider if he should be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct.  He appeared before the board on 24 March 2010 and the administrative separation board found the allegations regarding the aggravated assault on his spouse were not supported by a preponderance of evidence and recommended the applicant be retained in service.  The findings and recommendations were approved on 14 April 2010.

7.  On 14 April 2010, the applicant submitted a request to have the punishment set aside and all rights and property restored based on the findings of the administrative separation board that he contended exonerated him of the offense.

8.  On 28 April 2010, the battalion commander denied the applicant's appeal and informed him that he only had the power to set aside the punishment if he did so within 4 months of when the punishment was executed.  Accordingly, his request was untimely.

9.  On 7 May 2010, he submitted additional matters for consideration to the battalion commander; however, there is no evidence of record and he did not provide the outcome of that submission with his application.  Accordingly, it must be presumed his request was again denied.

10.  A review of his record shows he served a tour of duty in Afghanistan, two tours in Iraq, and a tour in Kuwait.

11.  Army Regulation 27-10 (Military Justice) provides that the imposing commander, a successor-in-command, or the next superior authority may, in accordance with the time prescribed in the Manual for Courts-Martial (MCM), remit or mitigate any part or amount of the unexecuted portion of the punishment imposed; may mitigate reduction in grade, whether executed or unexecuted; may at any time suspend, probationally, any part or amount of the unexecuted portion of the punishment imposed and may suspend, probationally, a reduction in grade or forfeiture, whether or not executed.  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 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 which 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.   The power to set aside an executed punishment and to mitigate a reduction in grade or forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment after 4 months from the date of punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action.

12.  Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) provides the procedures for conduct of administrative separation boards.  It provides that the board will determine whether each allegation in the notice of proposed separation is supported by a preponderance of the evidence.  The board will then determine whether the findings warrant separation with respect to the reason for separation.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his NJP should be set aside and all rights and privileges restored because the administrative separation board exonerated him of the offense has been noted and appears to lack merit.

2.  Administrative separation boards do not have the authority to exonerate individuals of charges or offenses but simply are tasked to determine if the basis for a recommended separation meets the preponderance of evidence necessary to warrant a separation from the service.

3.  It appears the subject NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  The punishment was not disproportionate to the offense and there is no evidence of any violations of the applicant's rights.

4.  Furthermore, the applicant exercised his right of appeal to the appropriate commander and he was unable to convince his commander that he was being unjustly accused.  Likewise, the applicant has failed to provide sufficient evidence to show there was not sufficient evidence to support the NJP imposed against him or that the punishment was unjust or disproportionate to the offense.

5.  In view of the foregoing, there appears to be no basis to grant the applicant's 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)                                         AR20120011177



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120011177



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1