MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           19 August 1999    
	DOCKET NUMBER:   AR1999019837

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

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Mr. Melvin H. Meyer		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, the applicant requests that the records of nonjudicial punishment under Article 15, UCMJ, for AWOL (violation of Article 86, UCMJ), and for willfully disobeying a lawful order (violation of Article 90, UCMJ), be removed from his official files.  He also requests that his date of rank as reflected on his DD Form 214 be corrected.  He requests physical disability separation.  He requests that his DD Form 214 also be corrected to show that he completed a German Headstart course.  

APPLICANT STATES:  That his discharge was based on fraudulent allegations.

The applicant states that he did not take any drugs, and that this Board directed that his records be corrected to delete from his records any and all references to the urinalysis results.  He states, in effect, that the nonjudicial punishment he received for refusing to shave was unfair, because he had recently had two wisdom teeth removed and his face was sore.  He states that he always respected officers and NCOs, but not always the individual, and that his award of the Army Achievement Medal, the highest award given during peace time, shows that he was not a so-so soldier.  He states that it is the duty of this Board to show that he should receive physical disability benefits from 15 September 1983 to the present.  He states that the charges against him were wrong. 

The applicant addresses his pay and promotion issues, stating that he was not paid for his second promotion to pay grade E-3 on 20 January 1982, and that he should be paid the pay difference between pay grade E-2 and E-3 from             20 January 1982 until 1 April 1982; and that he receive the difference between pay grade E-3 from December 1982 until his unjust separation on 9 June 1983; and that he receive pay in pay grade E-4 until the time of his automobile accident on 15 September 1983; and that his DD Form 214 reflect his pay grade as E-4 with a date of rank of 1 December 1983.  The applicant encloses some of his pay vouchers, and vouchers of another soldier, who he states entered the Army at the same time under the “buddy system”.  His pay vouchers do show that he was paid a difference between E-2 and E-3 pay from April through December 1982.

The applicant, in requesting that the records of nonjudicial punishment be removed from his records, also states that the $100.00 forfeiture be returned to him, and that the allegations of DWI, marijuana use, etc., are unfounded.  He states that by unjustly separating him before his ETS, and then removing the results of the urinalysis test, and asking if he would be willing to return to active duty to complete the remainder of his enlistment, you (the Army) must assume responsibility for the automobile accident which happened after his separation.

The applicant states that he was not guilty of AWOL, in that he attempted to contact his unit, that he was late in returning from leave through no fault of his own, i.e., he could not get a flight back to Germany.

He states that he did not obey an order to get a haircut, shave, and report to a commissioned officer, because he felt that the officer was making a request, and since he had been working for another officer at battalion level, it should have been that officer who could compel him to do something on his day off.

The applicant states that he was absent and missed formation on                        2 February 1983 because of mechanical problems with a vehicle he was driving. He was the only one punished and he felt that a verbal reprimand would have been sufficient.

The applicant encloses extracts of pages from the MCM dealing with AWOL and with willful disobedience of a superior commissioned officer.       

The applicant encloses a copy of a 10 September 1986 Board decision, which he has highlighted throughout, to show, in effect, that the Board determined that any references to the positive urinalysis specimen should be removed from his records.  NOTE:  That Board also concluded that the action taken to separate him was appropriate and proper and in accordance with applicable regulations.

The applicant also encloses a copy of a 30 October 1996 Board decision, in which he had requested that his DD Form 214 be corrected to show that his effective date of promotion to pay grade E-3 was 20 January 1982, among his other requests.  He has highlighted that portion of the memorandum of consideration reflecting his nonjudicial punishment on 3 February 1983, and his commander’s recommendation for discharge.  He has also highlighted a portion which shows his active service time, which he states is false.  NOTE:  That Board determined that his DD Form 214 was correct, concerning his active service time, and that his promotion date on his DD Form 214 was correct.

The applicant submits a certificate showing that he successfully completed  German Headstart training from 26 May to 5 June 1981.  That information is not reflected on his DD Form 214.  

EVIDENCE OF RECORD:  Incorporated herein by reference are military records which show:

That this Board, on 10 September 1986 (included with applicant’s request) concluded that his discharge was appropriate and proper.

That this Board, on 24 August 1988, considered the applicant’s request for active duty credit with pay and benefits through his scheduled ETS, which would have been 19 January 1984, and denied his request.

That this Board on 30 October 1996 (included with applicant’s request) reviewed the record of nonjudicial punishment that the applicant received in January 1982, which included a forfeiture of $100.00 and confinement for 7 days, both punishments suspended until 7 July 1982; and the nonjudicial punishment that the applicant received in May 1982 which included reduction to pay grade E-1, and forfeiture of $100.00, both suspended until 6 August 1982.  The records of nonjudicial punishment show that he was advised of his rights, to include having a person speak on his behalf, and present witnesses and other evidence.  He was informed that he was not required to make any statements at all, and that he had the right to demand trial by court- martial.  In each instance, he declined trial by court-martial, did not request an open hearing, nor a person to speak on his behalf.  He did not appeal the punishment given.  That this same Board reviewed and considered the same pay vouchers that he submitted with his current request.  This Board reviewed and considered an October 1982 DA Form 4187 (Personnel Action) which shows that the reason for nonpromotion of the applicant had been removed, and that he was promoted to pay grade E-3 effective 1 November 1982.  That this Board denied his request to change his date of rank on his DD Form 214 and denied his request to change his active service time on that form.

NEW EVIDENCE:

A 4 January 1982 sick slip shows that the applicant was seen for mechanical low back pain and directed to do no lifting of weight in excess of 25 pounds or physical training for 30 days.  

A 8 February 1982 sick slip shows he was seen for a dental follow-up and a medical profile renewal, and directed to do no bending, stooping, physical training, or lifting more that 25 pounds for 30 days.  That form show his grade    as E-3.

A 5 May 1982 medical record shows that the applicant was treated for mechanical low back pain, without radiculopathy, on 26 April 1982, and discharged from the hospital on 30 April with a diagnosis of resolved mechanical low back pain status post epidural injections.  He was given 10 days convalescence leave and advised to continue physical therapy, and was given a temporary profile.  No further appointments were made.  That record shows his rank as PFC (pay grade E-3). 

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases
involving minor offenses in which nonpunitive 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 before courts-martial and may consider any matter, including unsworn 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.

Army Regulation 600-200, then in effect, provides for the advancement and promotion of enlisted soldiers.  Paragraph 7-6 states in pertinent part that soldiers are not promotable and will not be promoted or advanced to a higher grade when they are being punished under Article 15, UCMJ, or during any suspension of punishment imposed.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A under other than honorable conditions certificate is normally appropriate for a member discharged for misconduct.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  As its name indicates, nonjudicial punishment is different from a trial by court-martial.  A nonjudicial punishment hearing is a more informal proceeding where the rules of evidence need not be strictly applied.  Before he elected to accept nonjudicial punishment the applicant was made aware of these differences and of his right to demand court-martial where he would receive the protection of the rules of evidence.  Instead he chose to have the matter settled at nonjudicial punishment.  

2.  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 substantive violation of any of the applicant's rights.  

3.  Since there is no basis for granting the portion of his request pertaining to the NJP, there is likewise no basis for granting his request to return money to him.  

4.  The applicant’s pay vouchers do show that he was paid a difference between E-2 and E-3 pay from April through December 1982, with the obvious inference that his pay grade was E-3 as early as April 1982.  A medical document shows that his grade was E-3 as early as February 1982.  Nonetheless the applicant was in a nonpromotable status from January until at least 6 August 1992.  He could not have been promoted, and if so, that promotion was erroneous.  This Board believes that, based on the October 1982 personnel action form, he was properly promoted in November 1982 and his date of rank as reflected on his       DD Form 214 is correct.  Consequently, he would have owed money to the government, unless that money was collected prior to his discharge.   

5.  The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

6.  The applicant’s discharge for unsatisfactory performance has been addressed in a previous Board decision.  His discharge was proper, and considering the nature of his service, more that fair.  The Board notes that the applicant could have been discharged for misconduct, and received an under other than honorable discharge.

7.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

9.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE:  The ARBA Support Division at St. Louis will be requested to correct the applicant’s DD Form 214 to show completion of the German Headstart course.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__cmf___  __cla___  ___mhm__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999019837	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990819	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.  110.00		
3.  126.04		
4.  128.00		
5.		
6.