BOARD DATE: 29 January 2015
DOCKET NUMBER: AR20140018782
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 17 October 2008 Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), be removed from his records.
2. The applicant states the Article 15 has more than served its intended purpose, being a company grade punishment from a unit he is no longer a part of, and has been in his records for six years, prohibiting any chances for promotion.
3. The applicant provides
* a personal statement
* a letter of support from a chaplain
* five Noncommissioned Officer Evaluation Reports (NCOER)
* three Army Commendation Medal Certificates
* an Army Achievement Medal Certificate
* two sets of award orders for the Army Good Conduct Medal (4th and 5th award)
* a 17 October 2008 Record of Proceedings Under Article 15, UCMJ
CONSIDERATION OF EVIDENCE:
1. On 16 October 2008, the applicant, a staff sergeant with 11 years of active duty service, received nonjudicial punishment (NJP) under Article 15, UCMJ, for failure to go to his appointed place of duty on two occasions. The punishment imposed was forfeiture of $683.00 pay (suspended), 14 days restriction (suspended), and 10 days of extra duty. The NJP imposing officer directed the NJP be placed in his restricted file. The applicant declined to submit a written statement on his own behalf.
2. His NCOER for the period that included the NJP action shows his rater marked him in the excellent or success blocks and as fully capable. His senior rated marked him in the successful second blocks for overall performance and potential. His subsequent NCOER's have rated him approximately the same or slightly better since the NJP was issued.
3. The 2008 NJP is the only negative entry in the applicant's available records.
4. The letter of support from the chaplain describes the applicant as a man of fine upstanding moral character and worth of serving as an Army Chaplin.
5. Army Regulation 27-10 provides policy for the administration of military justice. Chapter 3 states that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate. It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member'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 fewer resources than trial by court-martial. The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case. Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander. Chapter 3 of the regulation further provides that an NJP may be set aside upon a determination that, under all the circumstances of the case a clear injustice has resulted. A clear injustice means that an unwaived legal or factual error has clearly and affirmatively injured the substantial rights of the Soldier. New evidence unquestionably exculpating the individual is a cited example whereas the fact that a Soldier's subsequent performance has been exemplary or that the punishment adversely affects career potential is expressly excluded from the definition of clear injustice
DISCUSSION AND CONCLUSIONS:
1. The NJP was imposed in compliance with applicable laws, regulations and policies. The punishment imposed was neither unjust nor disproportionate to the offense, and there is no evidence of any violation of any of the applicant's rights.
2. While the offenses, for which the NJP was given, appears to have been an isolated event the record contains no evidence as to why a staff sergeant with 11 years of service would have committed these significant deviations from the norm.
3. The justification for the removal provided by the applicant is expressly excluded by the governing regulation.
4. Removal of the NJP would, in effect, place him on a level playing field with Soldiers, with similar years of service, whose careers have not been marred by incidents of such inappropriate behavior. Therefore, it would not be appropriate to remove the NJP.
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) AR20140018782
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