MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 August 2000                   
	DOCKET NUMBER:   AR2000037478

	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. Carl W. S. Chun		Director	
	Mr. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward 		Chairperson	
	Mr. Melvin H. Meyer 		Member	
	Ms. Linda D. Simmons 		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 forfeiture of $1,980 imposed by nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), be refunded; and that he be restored to the rank of sergeant first class (SFC, E-7).

APPLICANT STATES:  That his wife was the victim of medical malpractice at Brooke Army Medical Center (BAMC), Fort Sam Houston, Texas and, because she could no longer function as a wife and mother, she and the applicant's two small children became totally dependent upon him.  This placed extreme demands on his time.  His unit was not sympathetic to his needs, declared him absent without leave (AWOL), and offered him NJP.  In support of his application, he submits a 3-ring binder with numerous documents outlining his wife's physical condition and his unit's lack of concern over his family situation.

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

He was a staff sergeant in the United States Army Reserve (USAR) serving on active duty in the Active Guard Reserve (AGR) program as a recruiter in San Antonio, Texas.  On 3 July 1994, his wife was admitted to BAMC for an intrauterine pregnancy with preeclampsia, high blood pressure accompanied by protein in the urine (proteinuria) or retention of fluid (edema).  Doctors attempted to induce vaginal labor to no avail and when the health of the mother and unborn child deteriorated, she was taken to the delivery room for a cesarean delivery.

After the delivery, the mother's condition declined and an attempt was made to insert a central line during which the anesthesiologist lacerated the subclavian artery, the vertebral artery, and punctured the internal jugular vein.  The patient became hypotensive resulting in anoxic encephalopathy, brain damage, and impairment of cognitive functions.  She underwent two more operations to repair the damage and was hospitalized at BAMC until 8 August 1994 when she was transferred to a rehabilitation hospital.

The applicant, unable to do his job as a recruiter because of the increased demands of his family, was reassigned to less demanding duties and 1 year later, on 17 November 1995, he was formally suspended from recruiting duty.  However, the applicant continued to devote on-duty time to taking his wife to medical appointments and to care for his children.  His relationship with his chain of command appears to have become somewhat strained.

On 1 December 1995, the applicant was conditionally promoted to the rank of SFC.  He was notified by his chain of command in February 1996 that he would be required to attend the Advanced Noncommissioned Officer's Course (ANCOC) for recruiters at Fort Jackson, South Carolina.  Ordered to report to ANCOC on 23 July 1996, he failed to comply and was offered, and accepted, NJP.  His punishment included forfeiture of $990 per month for 2 months, extra duty for 45 days, and 45 days' restriction (all punishments were suspended until 23 January 1997).  On 3 July 1996, the U.S. Total Army Personnel Command revoked the applicant's promotion orders to SFC because of his failure to attend and complete ANCOC.  He reverted to his former rank of staff sergeant.

On 14 August 1996, the applicant had an appointment with Community Mental Health Service, BAMC.  He failed to keep that appointment and was charged with failure to go to his appointed place of duty.  The suspension of the punishment imposed against him under Article 15 was vacated and he was made to forfeit $1,980.00.  A bar to reenlistment was initiated against the applicant on 9 September 1996 (and approved on 6 January 1997) and he was relieved from recruiting duty on 6 November 1996 and given a relief for cause evaluation report.

On 19 November 1996, the applicant submitted a DA Form 4187, Personnel Action, requesting that he be separated from the AGR program and released from active duty.  He was honorably discharged on 12 May 1997 with one-half separation pay.  He had 8 years, 9 months, and 14 days of creditable active Federal service on his active duty period and a total of 11 years, 9 months, and 1 day of active Federal service.

Army Regulation 140-158 prescribes policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration of applicable USAR soldiers.  It states, in pertinent part, that soldiers promoted to the rank of sergeant first class (E-7) must be graduates of an ANCOC.  A soldier may be conditionally promoted to E-7 without having completed ANCOC provided he or she enrolls in the course within 12 months of the date of promotion and graduates within 24 months.

The policies and procedures governing the imposition of nonjudicial punishment are set out in Title 10, United States Code, section 815 (Article 15, UCMJ), and in Army Regulation 27-10, chapter 3.  Paragraph 3-24 of Army Regulation 27-10 provides that when a soldier is given a suspended punishment, any further misconduct by that soldier within the period of suspension may be grounds for vacation of the suspended portion of the punishment.

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 this requirement.

2.  The applicant's NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment imposed was neither unjust nor disproportionate to the offense and the suspension of that punishment demonstrated compassion for the applicant's family situation.  The vacation of that suspension was also in accordance with regulation and there is no evidence of any substantive violation of any of the applicant's rights.  

3.  For all soldiers, promotion to SFC (E-7) is conditional upon completion of ANCOC.  The applicant knew this and when he failed to comply with orders to attend ANCOC, his promotion was properly revoked.

4.  The applicant's wife suffered unfortunate medical complications while being treated at BAMC in July 1994.  It appears that the applicant's unit attempted to work with him to provide support during a trying period.  He was removed from recruiting duty and given less onerous assignments.  However, after 2 years, the applicant still had not resolved his family problems and his failure to attend ANCOC forced his unit to take disciplinary action against him.  

5.  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

_svw___  __mhm___  __lds____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000037478	
SUFFIX		
RECON		
DATE BOARDED	20000817	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	126.0400	
2.	129.0000	
3.		
4.		
5.		
6.