PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            18 January 2001                  
	DOCKET NUMBER:   AR2000040394

	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. Carl W. S. Chun		Director	
	Ms. Gale J. Thomas		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. John T. Meixell		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.  While the applicant requests that his records be corrected to show he was selected to Staff Sergeant (SSG) by the 1998 Army National Guard Bureau (ARNGB) Title 10 Staff Sergeant Promotion Board, and that he be granted Relook Promotion Boards for the 1996 and 1997 Staff Sergeant Promotion Boards, it appears he really means Sergeant First Class (SFC) and not SSG.  

3.  The applicant’s military records show that he enlisted in the Army National Guard (ARNG) on 30 August 1983, in the pay grade of E-4.  He was promoted to pay grades E-5 and E-6 on 20 August 1985. and 21 January 1987, respectively.

4.  On 5 March 1995, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for driving while intoxicated (DWI) on           1 January 1995.  His punishment was reduction to pay grade E-5 (suspended for six months), and ordered to attend the Army Drug and Alcohol Program (ADAPCP) at Fort Bliss. 

5.  On 2 April 1995, a legal review of the Article 15, opined that the proceedings were in accordance with law and regulations, except that portion ordering the applicant to ADAPCP, which was not legal punishment under Article 15.  In the reviewer’s opinion the suspended reduction was extremely light punishment for a DWI, and suggested it could reflect poorly on the New Mexico National Guard.  The review recommended that the Brigade Commander either void the Article 15 and administer it at his level, refer it to Battalion level for appropriate action, or approve the punishment of a suspended reduction.  

6.  In a 12 April 1995, memorandum to the National Guard Bureau, a Defense Counsel from the Army Defense Service, Fort Bliss, Texas states that the first Article 15 given to the applicant was valid except for the requirement to attend the ADAPCP, and that the second Article 15 was not valid.  She quotes Army Regulation 27-10, paragraph 3-10 which specifically prohibits double punishment.  This paragraph states that when “punishment has been imposed under Articles 13 or 15, punishment may not again be imposed for the same misconduct under Article 15.”  Punishment was imposed against the applicant on 5 March 1995, therefore, the second Article 15 given to the applicant on 7 May 1995 for the same offense was not valid.  She further states that Army Regulation 27-10, allows the imposing commander, successor to command, or higher authorities to set aside punishment imposed under Article 15, however, this action does not void the Article 15, it merely excuses part or all of the punishment.  Such action may be taken only when the punishment has resulted in a “clear injustice.” 

7.  There is no documentation in the applicant’s records to show what action was taken after the JAG review.  However, the applicant states that on 14 April 1995, he received a second Article 15, from Battalion Headquarters, for the same DWI offense that occurred on 1 January 1995, punishment from this Article 15 was reduction to pay grade E-5.  

8.  On 6 July 1995, Orders 3-9, were published reducing the applicant to pay grade     E-5, with a date of rank of 14 April 1995.

9.  In the processing of this case an advisory opinion was obtained from the National Guard Bureau (NGB), stating that after careful review of the applicant’s records they believe he should be reinstated to the grade of staff sergeant, that any entries of his reduction be removed from all of his personnel and AGR management records, and that he be paid back pay and allowances for that grade.  The NGB further recommends that the applicant be considered by the 1996 SFC Promotion Board based on his 1987 SSG date of rank, and if selected and promoted to sergeant first class, he should be granted standby advisory board consideration for master sergeant for each year in which he was eligible through the 1999 promotion boards, and if selected, promote him to master sergeant, award him the effective date and date of rank of the individual promoted in his place and process him for back pay.  

10.  The applicant was provided a copy of the advisory opinion and has not responded.

11.  Army Regulation 27-10, states in pertinent part that when punishment has been imposed under Articles 13 or 15, punishment may not again be imposed for the same misconduct under Article 15.  

CONCLUSIONS:

1.  The applicant’s initial Article 15 given on 5 March 1995 which resulted in a suspended reduction to pay grade E-5, was never vacated and expired without reduction 

2.  The second Article 15 issued on 14 April 1995, for the same offence is not valid and reduction orders 3-9, dated 6 July 1995 should be revoked.  All entries relating to this reduction should be removed from the applicant’s personnel management records.

3.  The applicant should be restored to his original rank of Staff Sergeant with a date of rank of 21 January 1987, and should be given promotion consideration under the criteria of the 1996 ARNG Title 10 Sergeant First Class Promotion Board.  If not selected he should then be considered by all subsequent boards.   If selected he then should be promoted with a date of rank and effective date on the date on which he would have been promoted had he not been removed from consideration.  

4.  If the applicant is selected for Sergeant First Class (SFC), he should then be considered for Master Sergeant for each year in which he was eligible up to and including the 2000 Promotion Board.  If selected, he should be promoted to the higher grade and awarded the appropriate effective date and date of rank with all back pay and allowances.

5.  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; 

	a.  by revoking Orders 3-9, dated 6 July 1995, which erroneously reduced the applicant to pay grade E-5;

	b.  by removing from the applicant’s personnel files all entries relating to his reduction;

	c.  by restoring the applicant to the pay grade of E-6 with a date of rank of        21 January 1987, with back pay and allowances from 14 April 1995, the effective date of his reduction;

	d.  by considering the applicant for the promotion to Sergeant First Class under the criteria of the ARNG Title 10 Promotion Boards beginning with the 1996 SFC Promotion Board, and if selected promote him with the appropriate date of rank and effective date, with entitlement to all back pay and allowances;

e.  If not selected continue to consider applicant for SFC under all boards he would have been eligible for, or

	f.  If selected to SFC, consider the applicant for all Master Sergeant Promotion Boards he was eligible for through the 2000 promotion board, and if selected promote him with the appropriate date of rank and effective date, with entitlement to all back pay and allowances.

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

BOARD VOTE:  

__jns____  __mhm__  __jtm___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000040394	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010118	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  131.00		
2.		
3.		
4.		
5.		
6.