IN THE CASE OF:  	  

		BOARD DATE:  21 May 2015	  

		DOCKET NUMBER:  AR20140016631 


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 his former rank/grade of private first class/E-3 be restored with all pay and allowances retroactively to 12 July 2012, the date of an illegal administrative reduction action.

2.  The applicant states, in effect, that on 21 January 2013, Circuit Judge Lieutenant Colonel (LTC) T.D. found the command's reduction action violated Article 13, and thus constituted pretrial punishment.

3.  The applicant provides a four page court ruling, dated 23 January 2013 and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The documents depicting the events surrounding the applicant's reduction from private first class to private were not listed in his official military personnel file (OMPF).  However, the court ruling that he submitted as evidence does give some insight into the underlying reason for the reduction.

2.  The applicant enlisted in the Regular Army on 31 July 2008 for four years.  He completed training and was awarded military occupational specialty (MOS) 12N (Horizontal Construction Specialist).

3.  His Enlisted Record Brief (ERB), dated 28 February 2013, shows the following information:

     a.  His date of rank (DOR) to private (PVT) was 20080731, his DOR to private (PV2) was 20120712, and his DOR to private first class (PFC) was 20090731. 

     b.  Two suspension of favorable personnel actions (FLAG) codes.  One is "AA" which represents "Adverse Actions" with a start date of 11 October 2011 and no expiration date.  The other one is "KA" which represents "Noncompliance with the Army Weight Control Program" with a start date of 16 April 2012 and no expiration date. 

     c.  An immediate reenlistment prohibition code of "9Z" which is for "weight (does not meet acceptable weight standards)."

4.  A thorough review of his records revealed no promotion or reduction orders and no documentation, such as a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), that details the cause of his FLAG actions.

5.  Orders 074-0011 issued by Headquarters, Third Infantry Division and Fort Stewart, Fort Stewart, GA on 14 March 2012, assigned him to the Fort Stewart Transition Center with a release date from active duty of 30 July 2012.  This order was amended on two separate occasions, extending his release date from active duty until 30 November 2012.

6.  He was approved for an extension of his expiration term of service (ETS) date by memorandum from Headquarters, Third Infantry Division and Fort Stewart, Fort Stewart, GA, dated 1 November 2012, by reason of a pending UCMJ/Flag/Chapter action. He was given a new ETS date of 30 May 2013.

7.  Orders 313-0005 issued by Headquarters, Third Infantry Division and Fort Stewart, Fort Stewart, GA on 8 November 2012, revoked orders 074-0011, dated 14 March 2012, and the two orders that amended it.

8.  He provided a four page court ruling document dated 23 January 2013, by Circuit Judge LTC T.D., unsigned and with a so ordered date of 21 January 2013, with the heading of "In a General Court-Martial of the United States, U.S. Army Trial Judiciary, Second Judicial Circuit."  This court ruling document shows the participants as United States of America versus Private (E-2) [Applicant].  The following is a summary of this ruling:

     a.  Ruling.  The defense motion for Mason credit is denied.  The defense motion for Article 13 credit is granted in part.  The court awards the accused     35 days of pretrial confinement credit.

     b.  Findings of Fact.  The court makes the following findings of fact related to both the Article 13 and the Mason Credit motion:

          (1)  [Applicant] was placed on restriction on 8 June 2012.  The reason cited in his counseling statement was an ongoing Criminal Investigative Division (CID) investigation (Exhibit 1) [This exhibit is not available for review or submitted by the applicant], which lasted until 26 October 2012.

          (2)  As part of this restriction, [Applicant] was required to physically sign in at the battalion staff duty every two hours from 1800-2200 on weekdays and 0800-2200 on weekends.  Staff duty was located in a different building than the building in which [Applicant] slept.

          (3)  [Applicant] was administratively reduced on 17 July 2012.  He was reduced for having broken restriction described above, for not securing his Common Access Card (CAC), and for various failures to report (FTR).  This reduction was in response to misconduct of the accused while his trial was pending.

     c.  Mason Credit.  The determination on whether restriction is tantamount to confinement is based on the totality of the conditions imposed.  The court ruled the restriction placed upon the accused was more in line with the sort found not be tantamount to confinement than those found otherwise.

     d.  Article 13 Credit.  "Article 13…prohibit[s] two types of activities: (1) the intentional imposition of punishment on an accused prior to trial, i.e. illegal pretrial punishment; and (2) pretrial confinement conditions that are more rigorous than necessary to ensure the accused's presence at trial, i.e., illegal pretrial confinement." 

     e.  In this case, the court found under a totality of circumstances that the conditions imposed upon the accused were done with an intent to punish. Specifically, the reduction in rank administratively imposed upon the accused was done with the intent to punish.  The reduction was imposed upon the accused in response to his breaking restriction and other misconduct.

     f.  As the court found the reduction violated Article 13, the court fashioned an appropriate remedy.  The court fashioned confinement credit for a reduction imposed administratively.  The court utilized confinement credit for a reduction in rank by dividing the applicant's aggregate lost pay that resulted from the reduction by the applicant's daily pay rate during that same time period of lost wages.   Therefore, the court determined the amount of pay lost to the accused between the date of reduction and the trial date, determined how many day's pay that reflects, and awarded day for day confinement credit for each day's pay lost.

     g.  The accused was reduced from E-3 to E-2 effective 12 July 2012.  The trial is scheduled to take place 19-20 February [2013].  The court counted the reduction as lasting from 12 July 2012 through 20 February 2013, for a total of 223 days.  In summary, the court determined the accused was entitled to 35 days of confinement credit for the reduction in rank imposed upon him on 12 July 2012.

9.  Orders 073-0007 issued by Headquarters, Third Infantry Division and Fort Stewart, Fort Stewart, GA on 14 March 2013, assigned him to the Fort Stewart Transition Center with a release date from active duty unless changed/rescinded of 30 May 2013.  He was to be assigned to the U.S. Army Reserve Control Group with a terminal date of Reserve obligation ending on 20 March 2016.

10.  He was honorably released from active duty on 30 May 2013, and transferred to the U.S. Army Reserve the following day.  He was separated in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 4, by reason of completion of required active service.  His  DD Form 214 shows he completed 5 years, 2 months, and 10 days of net active service with no time lost.  Item 18 (Remarks) shows the entry, "Retained in Service 304 days for the Convenience of the Government per 635-200."  

11. Uniform Code of Military Justice (UCMJ) Article 13 (Punishment Prohibited before Trial) states no person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline

12.  Army Regulation 27-10 (Military Justice), chapter 3, provides policies and procedures for nonjudicial punishment.  Paragraph 3-3, prescribes the relationship of nonjudicial punishment to nonpunitive measures.  Nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military control.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment. Included among nonpunitive measures are denial of pass or other privileges, counseling, administrative reduction in grade, extra training, bar to reenlistment, and MOS reclassification.  Certain commanders may administratively reduce enlisted personnel for inefficiency and other reasons.  This authority exists apart from any authority to punish misconduct under UCMJ, Article 15.

13.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions),         chapter 10, provides procedures for the reduction of enlisted personnel.  Paragraph 10-1, prescribes that an administrative reduction is a reduction in grade not as a result of a court-martial sentence or any other action under the UCMJ.  It also states in part, that individuals in the rank of corporal and below may be reduced up to one grade without action by a board.  Also, if a Soldier in the rank of corporal and/or specialist and below is being reduced one grade without referral to a reduction board, the reduction action must be completed within 30 days upon receipt of documentary evidence and before separation or retention is considered.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for restoration of his former rank/grade of private first class/E-3, with all pay and allowances retroactively to 12 July 2012, the date of an illegal administrative reduction action, was carefully considered.

2.  The Board cannot determine the cause of his charges and misconduct, due to the lack of documents in his OMPF.  However, he does provides a four page court ruling, dated 23 January 2013, that shows he was pending trial for offenses punishable by a General Court-Martial.  The specific reasons are not stated in this document.

3.  This document does cite that he was placed on restriction on 8 June 2012, due to an ongoing CID investigation.  It also states he was administratively reduced on 17 July 2012 for breaking the parameters of the restriction, as well as for not securing his CAC card, and for various FTRs.  This was a result of his misconduct while his trial was pending.

4.  He contends his rank of private first class should be restored with all pay and allowances, since the Circuit Judge ruled on 21 January 2013 that his reduction in rank violated Article 13 and was done so with the intent to punish.

5.  The court ruling gave a favorable remedy to the applicant that the reduction imposed on him would afford him a 35 day confinement credit.  It did not invalidate the legitimacy of the administrative reduction itself, as he was reduced for breaking the parameters of his restriction, not securing his CAC card, and for various FTRs.

6.  His DD Form 214 and ERB confirms he was reduced from PFC to PV2 and was honorably released from active duty as a PV2.  There is a presumption of regularity in the conduct of governmental affairs and the processing of the reduction was correct.

7.  In view of the foregoing, given the limited evidence, which is mostly provided by the applicant, there is an insufficient evidentiary basis for granting 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)                                         AR20100013357



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ABCMR Record of Proceedings (cont)                                         AR20140016631



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