IN THE CASE OF:	  

		BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20120021528 


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 DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 18 October 2011, be changed pertaining to his reduction in rank.

2.  The applicant states he received a reduction in rank from specialist (SPC)/pay grade E-4 to private (PVT)/pay grade E-1 due to an arrest for driving under the influence.  He states the punishment for the same offense is different for other service members of a different rank.  He asks for fair and equitable treatment for all.

3.  The applicant provides:

* two DA Forms 4856 (Developmental Counseling Form), dated 24 August  and 13 September 2011
* DA Form 2627, dated 18 October 2011
* an unsigned letter, dated 26 July 2012, from his father to Senator John McCain

CONSIDERATION OF EVIDENCE:

1.  On 29 October 2008, the applicant enlisted in the Regular Army.  He was assigned to the 1st Battalion, 16th Field Artillery, 3rd Heavy Brigade Combat Team.  He served in Iraq from 11 October 2009 to 23 September 2010.  

2.  On 24 August 2011, he received formal counseling and a recommendation from his unit commander for a field grade Article 15.  On 21 August 2011, he was cited for excessive speeding and driving under the influence of alcohol.  The commander stated he briefed the acceptable standards of conduct every week which included not drinking and driving.

3.  On 26 September 2011, the brigade commander, a colonel (COL), notified the applicant he was considering whether he should be punished under Article 15, UCMJ for the following misconduct:  On or about 21 August he did physically control a vehicle, to wit: a passenger car, while the alcohol concentration in his breath was, as shown by chemical analysis, equal to or exceeded .08 grams of alcohol per 210 liters of breath.  The applicant:

* did not demand trial by court-martial
* requested a closed hearing
* did not request a person to speak in his behalf
* did not present matters in defense, extenuation, and/or mitigation

4.  On 18 October 2011, the brigade commander, in a closed hearing, found the applicant guilty of the offense and imposed the following nonjudicial punishment (NJP):

* reduction to PVT (E-1)
* a forfeiture of $733 pay for 2 months
* extra duty for 45 days
* restriction to the limits of Fort Benning for 45 days

5.  The applicant did not appeal the punishment.

6.  On 23 March 2012, he was released from active duty by reason of completion of required active service.  He completed 3 years, 4 months, and 25 days of active service that was characterized as honorable.

7.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the NJP process by:

		(1)  evaluating the case to determine whether proceedings under Article 15 should be initiated;

		(2)  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and

		(3)  determining the amount and nature of any punishment, if punishment is appropriate.

	b.  Setting aside and restoration 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.  The 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.

8.  Paragraph 5, Part V of the Manual for Courts-Martial states that in addition to or in lieu of admonition or reprimand, the following authorized maximum punishments may be imposed as NJP:

	a.  Upon commissioned officers and warrant officers:
 
	(1)  By any commanding officer:  restriction to specified limits, with or without suspension from duty for not more than 30 consecutive days.
 
	(2)  If imposed by an officer exercising general court-martial jurisdiction, an officer of general or flag rank in command, or a principal assistant:

  * arrest in quarters for not more than 30 consecutive days 
  * a forfeiture of not more than one-half of one month’s pay per month 		for 2 months 
  * restriction to specified limits, with or without suspension from duty, 			for 	not more than 60 consecutive days
	
	b.  Upon other military personnel of the command: 
	
		(1)  By any NJP authority: 

   * if imposed upon a person attached to or embarked in a vessel, 				confinement on bread and water or diminished rations for not more 			than 3 consecutive days
   * correctional custody for not more than 7 consecutive days 
   * a forfeiture of not more than 7 days pay
   * reduction to the next inferior grade, if the grade from which 					demoted is within the promotion authority of the officer imposing the 		reduction or any officer subordinate to the one who imposes the 				reduction 
   * extra duties, including fatigue or other duties, for not more than 
   	14 consecutive days
   * restriction to specified limits, with or without suspension from duty, 			for 	not more than 14 consecutive days

	(2)  If imposed by a commanding officer of the grade of major or lieutenant commander or above or a principal assistant: 

   * if imposed upon a person attached to or embarked in a vessel, 				confinement on bread and water or diminished rations for not more 			than 3 consecutive days 
   * correctional custody for not more than 30 consecutive days 
   * a forfeiture of not more than one-half of 1 month’s pay per month 
   for 	2 months
   * reduction to the lowest or any intermediate pay grade, if the grade 			from which demoted is within the promotion authority of the officer 			imposing the reduction or any officer subordinate to the one who 			imposes the reduction, but enlisted members in pay grades above 			E-4 may not be reduced more than one pay grade
   * extra duties, including fatigue or other duties, for not more than 				45 consecutive days
   * restriction to specified limits, with or without suspension from 				duty, for not more than 60 consecutive days

DISCUSSION AND CONCLUSIONS:

1.  It is reasonable to conclude the officer imposing the applicant's NJP exercised discretion in the NJP process based on the applicant's offense and considered all mitigating factors and factors raised to cast doubt on the applicant's guilt.  The record establishes the commander determined the evidence was sufficient to find the applicant guilty beyond a reasonable doubt.

2.  As provided for in the Manual for Courts-Martial, maximum punishments that may be imposed as NJP are dependent on the rank of the officer imposing the punishment and the rank of the service member receiving the NJP.  The imposing officer in this case was a COL and the applicant was a SPC.  Therefore, the applicant's reduction to PVT was within the imposing officer's authority.  There is no documentary evidence indicating the punishment was unfair or inequitable.
3.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law, and regulations, the NJP was appropriately imposed.  

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)                                         AR20120021528



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ABCMR Record of Proceedings (cont)                                         AR20120021528



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