PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  16 March 2000
	DOCKET NUMBER:   AR1999026295

	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. Paul A. Petty .		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Christopher J. Prosser		Member	
	Mr. Orville W. Troesch		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, in effect, that he be restored to the grade of E-4 and that $900 be restored to him, the loss of both a result of an Article 15; and that the Article 15 be removed from his record.

3.  The applicant states, in effect, that he was given an Article 15 punishment that was too harsh.  He accepted the Article 15 with the understanding he states he gained from a Judge Advocate training video, that accepting an Article 15 did not mean he was admitting guilt.  He maintains that he is innocent of the charges.  He supplies copies of documents he presented to his commander for consideration before imposing punishment.  These documents show that he has a wife and two young children and significant financial obligation.

4.  The applicant’s military records show that he enlisted in the Regular Army on 13 January 1995.  He completed training to become a cannon crew member.  He advanced to Specialist (SPC) E-4.

5.  According to MP reports, on 9 December 1998, while assigned at Fort Wainwright, Alaska, the applicant was on guard duty in a unit motor pool with three other soldiers, E-4 “W”, E-1 “P”, and E-1 “L”.  During the guard detail, 
E-4 “W” tried to purchase candy from a vending machine in the motor pool.  The candy became stuck and did not come out of the machine.  E-4 “W” shook the machine to dislodge the candy and in the process tipped the machine over breaking one of its legs.  Beyond this point, the statements from the four soldiers are conflicting concerning who did what.  It is generally agreed that the four soldiers then turned the vending machine upside down dislodging candy, chips, cigarettes, and other related items.  They set the machine back upright and tried to fix the leg.  Again the statements and evidence are conflicting as to who took what if any of the freed vending machine items.  The applicant maintains his innocence that he came upon the scene, helped set the vending machine up thinking that it had just fallen over, but did not know that the others had stolen things from the machine.  He did not give a statement and invoked his rights to request legal representation.  Solder E-1“P” contradicted himself in his statements, then went AWOL twice, and was dropped from the rolls as a deserter. The other two soldiers have different views of what happened but both admitted being involved in the theft and damage.  The vending company reported to the MPs that the cost of the missing merchandise and damage to the machine was estimated at $63.00.

6.  The three soldiers were given Article 15 punishments on or about 11 February 1999 (the fourth soldier had gone AWOL and did not return).

	a.  The applicant was given a field grade Article 15 with punishment of reduction from E-4 to E-1, forfeiture of $450 a month for two months, 45 days restriction and 45 days extra duty.  He appealed his Article 15 but it was denied.

	b.  E-4 “W” was given a company grade Article 15 with punishment of reduction from E-4 to E-3, forfeiture of $550 a month for two months, and 
14 days extra duty.

	c.  E-1 “L” was given a company grade Article 15 with punishment of forfeiture of $223 a month, 14 days restriction and 14 days extra duty.

7.  The Articles 15 charged each of the three soldiers with stealing various snack items from the vending machine at a value of $63.23 and damaging the vending machine at a cost of less than $100.  This does not agree with the MP report that stated that the vending machine company estimated the loss of merchandise AND damage to the vending machine at approximately $63.00.

CONCLUSIONS:

1.  Both E-4s in this incident were charged with the same violations, yet the applicant received reduction from E-4 to E-1 while the other E-4 who, from the witness statements appears to have initiated the theft and damage, was only reduced from E-4 to E-3.  This does appear to be unjust.  There is no evidence or basis to justify a greater punishment for the applicant simply because he maintained his innocence and did not confess to being guilty of the charges.

2.  The Article 15 punishment of the applicant, while it may be within legal limits, it is too harsh considering the misdemeanor nature of the offenses, considering the lighter punishment given the other two soldiers who were equally charged, and considering the applicant’s 3 dependents for whom he must provide and his financial obligations.  His heavy Article 15 punishment also unjustly heavily punished his family.  As a matter of justice, the applicant’s reduction punishment should be from E-4 to E-3, and as a matter of compassion, his forfeiture should only be $450 for one month instead of two months.

3.  While the applicant maintains that he is innocent, he has not presented evidence to prove this contention.  As such, there are no grounds to remove the Article 15 from his record.

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.  advancing him to E-3 effective 12 February 1999 with consequent pay adjustments; and

	b.  restoring to him $450 of forfeited pay.

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

BOARD VOTE:  

__JP___  __CP___  __OT__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Jennifer L. Prater____
		        CHAIRPERSON

INDEX

CASE ID	AR1999026295	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000316	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT PART	
REVIEW AUTHORITY		
ISSUES         1.106.001	Restoration	
2.		
3.		
4.		
5.		
6.