MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           16 December 1999                   
	DOCKET NUMBER:   AR1999021136

	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	
	Mrs. Nancy Amos		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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:  That his DD Form 214 be corrected to reflect his rank as Private First Class (PFC), E-3 and that he be given all due back pay and allowances.

APPLICANT STATES:  That he was not given any representation and was found guilty of an unfounded charge.  His reduction to Private, E-1 was improperly imposed.  Supporting evidence is as listed on the DD Form 149.

COUNSEL CONTENDS:  That the 8 September 1998 memorandum from the Trial Defense Counsel verifies that the applicant was not given proper representation, was found guilty of an unfounded charge and was reduced improperly.

EVIDENCE OF RECORD:  The applicant’s military records show:

He enlisted in the Regular Army on 11 August 1995.  

On 7 January 1998 at 5:05 p. m., the applicant was informed the commander intended to impose non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice on him for being disrespectful in language towards a non-commissioned officer and of breaking restriction.  Paragraph 2 of the DA Form 2627 concludes with “In deciding what you want to do you have the right to consult with legal counsel located at …You now have 48 hours to decide what you want to do.”  On 8 January 1998, the applicant accepted the NJP by completing paragraph 3, “Having been afforded the opportunity to consult with counsel, my decision are (sic) as follows,” by checking and initialing that he did not demand trial by court-martial, that he requested a closed hearing and no one to speak in his behalf and that matters in defense, mitigation and/or extenuation would be presented in person.  His punishment was a reduction to Private, E-1, a forfeiture $450.00 for 2 months (suspended), extra duty and restriction.  He did not appeal the punishment.

The applicant subsequently accepted NJP in May and June 1998 for assault and for being drunk while on duty, respectively.  He received numerous counseling statements and was processed for elimination under the provisions of Army Regulation 635-200, Chapter 14 for misconduct.  

On 8 September 1998, while reviewing his elimination packet, the local Trial Defense Counsel noted that it appeared the applicant had been given NJP (in reference to the 8 January 1998 action) without the benefit of legal counsel.  Trial Defense reviewed their client records and could find no record that he received legal counsel prior to imposition of the punishment and could find no record of a waiver of legal counsel.  The Trial Defense Counsel stated the lack of counsel was substantiated by the fact the initial reading occurred on 7 January 1998 at 5:05 p. m. and punishment was imposed on 8 January 1998.  The Trial Defense Counsel also noted that the charge of breaking restriction was invalid because the applicant had not been on restriction at the time; no NJP had preceded his    8 January 1998 punishment.

The battalion commander recommended approval of the applicant’s elimination on 17 September 1998 and the division commander approved the elimination action on 22 September 1998.  Neither commander made reference to the Trial Defense Counsel’s 8 September 1998 memorandum.

On 30 October 1998, the applicant was discharged, with a general discharge, in pay grade E-1.

Army Regulation 27-10 prescribes policy and procedures pertinent to the administration of military justice.  Paragraph 3-18 states that the imposing commander will ensure that the soldier is notified of the commander’s intent to dispose of the matter under the provisions of Article 15, UCMJ.  The soldier will be informed of the right to remain silent and the right to consult with counsel and the location of counsel.  If the soldier requests a decision period, he will be given a reasonable time to consult with counsel.  If the soldier does not request a delay, the commander may continue with the proceedings immediately.

The Manual for Courts-Martial 1984, 1998 edition, part IV, paragraph 102 discusses Article 134 – breaking restriction.  It states that “restriction” includes restriction under Rules for Court-Martial 304(a)(2), restriction resulting from imposition of either non-judicial punishment or the sentence of a court-martial, and administrative restriction in the interest of training, operations, security or safety.

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.  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.

2.  The Board finds no error with the 8 January 1998 Article 15 proceedings.  Army Regulation 27-10 states only that a soldier may request a decision period and that he has the right to consult counsel prior to accepting NJP.  It does not state that a soldier must consult counsel or that he must waive this right in writing.  The Board finds that the lack of a record of a waiver of legal counsel is immaterial.  The timing of the notification of intent of punishment is also of no adverse significance.  The Board concludes the applicant thought about his option to consult counsel overnight and decided to accept punishment the next day.  His completion of paragraph 3 of the DA Form 2627 indicates he waived his right to a 48-hour decision period.

3.  The local Trial Defense Counsel may not have had a record of the applicant receiving prior non-judicial punishment for breaking restriction but that does not mean that an administrative restriction had not been previously imposed upon him.  The applicant has provided no evidence to show he was not given such administrative restriction.  In addition, the Board concludes that the offense of being disrespectful in language towards a non-commissioned officer alone would have warranted the punishment given, to include the reduction in grade.

4.  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.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__fkm___  __rvo___  __sk____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX
CASE ID	AR1999021136	
SUFFIX		
RECON		
DATE BOARDED	19991216D	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.00	
2.	100.00	
3.		
4.		
5.		
6.