PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           
	DOCKET NUMBER:   

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. W. E. Schnupp		Analyst	

  The following members, a quorum, were present:

	Mr. Ted S. Kanamine		Chairperson	
	Mr. Orville W. Troesch, Jr.		Member	
	Mr. James P. Steuve		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.	The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests removal of an Article 15, from his OMPF and reinstatement in the grade of staff sergeant (SSG) with all pay and allowances due him.

3.  The applicant states that he was a reservist on active duty in 1997.  While assigned in Germany, he was charged with assaulting another soldier and reduced from SSG to sergeant as the result of an Article 15.  He contends that his offense should have been considered self-defense rather than assault and that Army Regulation 27-10 precluded reduction of a reservist above the grade of sergeant by Article 15 action.  Therefore, his reduction was not in compliance with regulations.

4.  The applicant’s military records show that he was an USAR SSG serving an active duty for training tour in Germany in 1997.  On 18 September 1997 he was involved in a verbal altercation with another soldier which turned physical when the other soldier struck him in the face.  He retaliated by striking that soldier in the face and was charged with assault.  

5.  On 21 October 1997 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for violation of Article 128, assault.  His battalion commander, the officer imposing the punishment, sentenced him to reduction to sergeant, suspended, to be automatically remitted if not vacated before 20 April 1998, restriction for 25 days, and forfeiture of $865.00 pay per month for two months.  It was also directed that a copy of the NJP be filed on the performance fiche of his OMPF.  The applicant’s appeal of the punishment was denied.

6.  Subsequent to accepting NJP, the applicant was apparently directed to attend an anger management class.  On 3 November 1997, he was charged with being AWOL for missing the anger management class causing his suspended sentence of reduction to be vacated.

7.  Following his reduction to sergeant, the applicant submitted an (unsigned) Inspector General Action Request (IGAR) asserting that the incident that led to his NJP should have been considered self-defense rather than assault.  In support of his assertion, he included an extract from the Judges Bench Book that defined incidents such as the one he was involved in as self-defense.  There is no evidence in the file to show that the IGAR was ever acted upon.

8.  Army Regulation 27-10, Military Justice, provides in pertinent part, that any portion of a reduction under Article 15 beyond the imposing commander’s 

authority to reduce is void and must be set aside. Further, Table 3-1, (Table of Maximum punishment), footnote 4, provides that RC soldiers of grade E6 and higher may not be reduced by Article 15 punishment.

CONCLUSIONS:

1.  AR 27-10 establishes additional rules and limitations that are applicable to the kinds and amount of punishments that may be imposed on USAR soldiers under NJP.

2.  On 21 October 1997 the applicant, an USAR soldier on active duty was reduced by NJP from SSG to sergeant in contravention of the rules regarding reduction of USAR soldiers.  Since his NJP was not in compliance with the requirements of AR 27-10, it would be appropriate to remove that portion of the NJP concerning his reduction to sergeant and that any pay or benefits lost as a result of the reduction be restored to him.  The remainder of the NJP, however, was neither unjust nor disproportionate to the offense involved and should remain a part of his record.

3.  Insofar as his contention that he should have been charged with self-defense instead of assault is concerned, the Board believes that issue should have been raised at the time of the NJP, or in his appeal, or, should even have been the basis of his demanding trial by court-martial rather than accepting NJP.  In any event, the time is past for him to assert that as a defense.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

a.  removing from the NJP dated 21 October 1997 that portion of the punishment that reduced the individual concerned from SSG to sergeant; and,

b.  restoring to him all rights, privileges, and property lost as a result of his reduction to sergeant.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

_TSK____  _OWT__  _JPS____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Ted S. Kanamine
		        CHAIRPERSON

INDEX

CASE ID	AR1998009863	
SUFFIX		
RECON		
DATE BOARDED	19990317	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.126.04		
2.		
3.		
4.		
5.		
6.