IN THE CASE OF:  	  

		BOARD DATE:  4 November 2014	  

		DOCKET NUMBER:  AR20140001332 


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 reconsideration of his previous request to set aside the nonjudicial punishment (NJP) he received under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on or about 22 November 1976, and to further:

* restore his rank/grade to private/E-2 
* reimburse his lost pay and allowances
* reimburse $100.00 pay he forfeited as part of his punishment

2.  The applicant states the Board's decision to deny his previous request was arbitrary, capricious, and contrary to the substantial evidence presented.  

   a.  The Board relied on an unsigned DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) to support their theory that the applicant's commander reconsidered the previous suspension and imposed the suspended punishment.

   b.  Under the authority of United States v. Stewart, 12 M.J. 143 (CMA 1981), the absence of the commander's legible signature on the form vacating suspended NJP rendered that document inadmissible as evidence.

   c.  Based on the authority of United States v. Stewart, there is no valid evidence that the applicant’s commander imposed the suspended punishment, and the imposition of such punishment by a void order is a clear injustice warranting relief from the Board.

3.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120022823, on 18 July 2013.

2.  The applicant enlisted in the Regular Army on 25 March 1976.   

3.  On 19 November 1976, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at the time prescribed on or about 10 November 1976.  His DA Form 2627 shows that, having been afforded the opportunity to consult with counsel, he did not demand a trial by court-martial, did not desire a spokesman to accompany him, did not present matters in defense and/or extenuation, and he did not request an open hearing.  

4.  His punishment consisted of a reduction to the rank/grade private (PV1)/E-1, a forfeiture of $100.00 pay for 1 month (both suspended for 60 days), and extra duty and restriction for a period of 10 days.  His commander advised him of his right to appeal his punishment within 5 days of the date of imposition.  On         22 November 1976, he declined appeal of his NJP.

5.  His record contains an unsigned second DA Form 2627, which vacates the suspended portion of his imposed punishment on 22 November 1976.  

6.  His record contains a DA Form 4126-R (Bar to Reenlistment Certificate), dated 8 April 1977.  Item 10 (Record of NJP) contains the statement, "Suspended portion of punishment was vacated on 22 Nov 76 for failing to obey a lawful order."  The applicant's signature is on this document acknowledging that he was counseled and advised of the basis for this action.

7.  On 9 May 1977, he was discharged from the Army under honorable conditions.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged in the rank/grade of PV1/E-1, after completing 1 year, 1 month, and 15 days of total active service.

8.  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 (MCM).  Chapter 3, of the regulation in effect at the time, implemented and amplified Article 15 of the UCMJ and Chapter XXVI of the MCM.  
   a. Paragraph 3-4 states 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.  

   b. Paragraph 3-17 states the purpose of suspending punishment, ordinarily, will be to grant to a deserving member a probationary period during which he/she may show that he/she deserves remission of the suspended portion of his/her NJP.  If, because of further misconduct by the member within this period, it is determined that remission of the suspended punishment is not warranted, the suspension may be vacated and the suspended portion of the punishment executed (emphasis added).  Action vacating a suspension will be recorded in accordance with Notes 10 and 11, Part III, DA Form 2627.  Unless the suspension is vacated prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action.  

   c. Paragraph 3-20 describes the setting side of punishment and restoration or rights, privileges, or property.  This is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored. 

      (1)  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.  

      (2)  "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.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 

9.  The presumption of administrative regularity in the conduct of governmental affairs can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his Article 15 should be set aside, his rank restored, and forfeited pay in the amount of 100.00 and lost pay and allowances should be reimbursed have been duly noted.

2.  The evidence of record confirms the imposing commander administering the Article 15 proceedings, during a closed Article 15 hearing and after consideration of all the evidence, determined the applicant committed the offense in question.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the charged offense(s).  

3.  The imposing commander's function is to make a decision as to whether or not a Soldier committed the offense in question and render an appropriate punishment if necessary.  These decisions will not be upset by the ABCMR unless the commander's determination is unsupported by the evidence or they failed to follow the applicable regulations.  

4.  The evidence of record shows he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels.  However, the applicant waived his right to a trial by court-martial, opted for a closed Article 15 hearing, and waived his right to an appeal.

5.  He did not provide sufficient evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings, or that the UCMJ was violated in any way.

6.  Even though his official military record does not contain a signed copy of the DA Form 2627 vacating his suspended sentence, the applicant's official military records do contain a DA Form 4126-R which clearly shows the suspended portion of his punishment was vacated on 22 November 1976 for failing to obey a lawful order.  This evidence supports the presumption of regularity.  Therefore, in the absence of evidence to the contrary, it is reasonable to presume that the applicant's suspended sentence was properly vacated, all requirements of law and regulations were met, and his rights were fully protected throughout the process.

7.  In view of the foregoing, he is not entitled to the 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 to amend the decision of the ABCMR set forth in Docket Number AR20120022823, dated 18 July 2013.



      ____________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)                                         AR20140001332



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ABCMR Record of Proceedings (cont)                                         AR20140001332



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