MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           13 February 2001                  
	DOCKET NUMBER:   AR2000046540

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Mr. Harry B. Oberg		Member	
	Ms. Shirley L. Powell 		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, that he be restored to the rank of Sergeant, with the restoration of all rights, privileges, and property; that he be scheduled to attend the basic NCO course (BNCOC); and that the record of nonjudicial punishment be removed from his official military personnel file (OMPF).  

APPLICANT STATES:  That his actions were completely within his authority as an NCO, were not unlawful, and did not constitute assault.  The nonjudicial punishment was imposed by personnel in his chain of command in retaliation for communicating unfavorable information to their superiors.

The applicant provides a brief chronology of his military service, stating that he enlisted in 1992, received recognition of his soldierly qualities during basic and advanced training, and thereafter was assigned to a transportation company at Fort Riley, Kansas.  

He recounts his service, to include his deployments in Somalia, Guantanamo  
Bay, Cuba, and Bosnia.  He provides information concerning his civilian education, his promotions, responsibilities, duties, and accomplishments.  

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

The applicant entered on active duty on 28 July 1992 and has remained on continuous active duty.  He was promoted to Sergeant on 1 November 1995.  His five evaluation reports dating from November 1995 through June of 1999 have been outstanding.  His report for the period August 1998 through January 1999, shows that the applicant was a heavy wheeled vehicle driver, and that he had been selected over ten senior NCOs to serve as rear detachment first sergeant for the unit’s deployment in support of Operation Joint Forge.  His rater was his first sergeant, who stated that the applicant was among the best in overall potential for promotion and/or service in positions of greater responsibility. 

On 29 June 1999 the applicant submitted a complaint of wrong under the provisions of Article 138, UCMJ.  He provided a 19 page recitation of his complaints, which mainly consisted of his problems with his company commander and first sergeant.  He stated, in effect, that his company commander removed him from his position as rear detachment commander as reprisal for notifying the battalion commander that the company commander had not complied with the policy of having all deploying soldiers attend individual readiness training (IRT), and for communicating with a field grade officer concerning a quarterly training brief (QTB).  Consequently, he was ordered to deploy to Hungary with the main body of his unit.  

Subsequent to his deployment to Hungary, he stated that he was verbally abused by his first sergeant, unfairly counseled (reprimanded) by his company commander for a minor infraction (the loss of one round of ammunition), and refused an assignment as a squad leader, even though he outranked two other squad leaders in the company.  He called his wife (in Mannheim, Germany), and asked her to intervene with the battalion command sergeant major on his behalf. The applicant stated that his first sergeant belittled him during a company formation.

The applicant outlined his problems concerning his request for a 60 day curtailment of his overseas tour.  He stated that his company commander also refused his request to attend a mandatory levy briefing (in Germany), and that his company commander would only recommend approval on a request for a 30 day curtailment, and not a 60 day curtailment; and that the company commander in his forwarding letter to the request, made the statement that the applicant had tried to weasel out of this deployment on numerous occasions.  His wife tried to get a copy of the curtailment package, but was denied at the express wish of his company commander.  

In his complaint, the applicant stated that he had a confrontation with his company commander, which resulted in a counseling statement, and nonjudicial punishment for disrespect.  He stated that his company commander had used his influence and that of the first sergeant’s to tarnish and devalue his reputation and career, as an NCO and a man, to his peers, subordinates, and superiors.    

He stated that everyone in the company was scared and afraid of retribution, and that morale was gone.  He stated that the company commander and first sergeant were hypocrites.  He stated that a soldier who was a favorable witness to the confrontation between himself and the company commander was not called upon to make a statement.  He requested that his curtailment be approved, his award be reinstated, his NCO evaluation report be completed by unbiased raters, and the report reflect that he was an acting squad leader.  He requested that his nonjudicial punishment appeal be held in abeyance until action on his complaint has been completed. 

Enclosed with his application is a copy of a message from his company commander to his battalion commander concerning the IRT details, a copy of a message from the applicant to his first sergeant concerning the QTB, and a copy of a message from the applicant to his first sergeant concerning his relief as the rear detachment first sergeant.  Also enclosed is a statement from his company commander counseling him for the loss of one round of ammunition, and a statement counseling him concerning his removal as the rear detachment first sergeant.  

The applicant enclosed a positive counseling statement from his rear detachment commander, and a letter from a housing manager to his company commander supporting the applicant’s tour curtailment.  

His 18 May 1999 request for a 60 day tour curtailment shows that his company commander recommended disapproval of that request.  In a 25 May 1999 letter forwarding that request, the company commander stated:  “SM (service member) has developed a pattern of attempting to get out of this deployment early.  This attempt just seems like another stab at leaving the command while the team is still downrange.  SM was offered my recommendation of approval if he would submit this curtailment for a DEROS of 990731 instead of 990630.  He declined.”    
A 2 June 1999 counseling form shows that his company commander counseled him for being disrespectful.  The applicant, in his rebuttal, stated that he was not disrespectful.  Two soldiers, in their statements, indicate that the applicant was disrespectful.  On 10 June 1999 the applicant received nonjudicial punishment for his disrespect.  He received a forfeiture of pay, which was suspended, and  14 days restriction, and 14 days of extra duty.  He appealed.  The portion of his punishment concerning 14 days restriction was lifted.  

On 22 July 1999 the applicant’s commanding officer provided a response to the applicant’s request for redress, addressing each issue in the applicant’s complaint.  A 3 February 1999 memorandum from the applicant’s company commander to all leaders of the company shows that the standard for soldiers who are leaving on a permanent change of station (PCS) is to redeploy them    30 days prior to their PCS.   

The applicant was recommended for an award of an Army Commendation Medal, and his company commander apparently recommended approval; however, it was never processed beyond company level, because the applicant was “flagged” pending results of his appeal of nonjudicial punishment that he received on 21 July 1999.

On 21 July 1999 the applicant received nonjudicial punishment by his battalion commander for grabbing another soldier around the neck and head and throwing him to the ground.  He was reduced to pay grade E-4.

The applicant appealed the punishment, stating in effect that he had gotten into an altercation with a drunk soldier over a period of 20-30 minutes.  He tried to reason with that soldier, even after being verbally abused and insulted.  The soldier was trying to provoke him into a fight, so he tried to leave; however, the soldier kept blocking his way.  The applicant stated that he grabbed the soldier and took him to the ground, because he feared that soldier was going to assault him.  An NCO broke up the fracas.  The applicant informed another NCO and an 

officer what had happened, and discussed the issue with his company commander.  In his appeal he was supported by two soldiers who witnessed the incident.  The soldier, who admitted he was drunk, stated that he did verbally abuse the applicant, but gave a somewhat different version of the incident, as did an NCO who witnessed the affair.  The applicant, in his appeal, stated that the NCO who witnessed the affair was also drunk; consequently, his version of the event that transpired was somewhat inaccurate.  The applicant also implied that because of the Article 138 complaint that he submitted against his company commander, the decision to impose nonjudicial punishment might have been biased.  On 9 August 1999 the applicant’s appeal was denied.

In an undated endorsement to the applicant, the commanding general of the     21st Support Command informed him that he had evaluated his complaint under Article 138 to determine if he was fairly treated, and in doing so had directed an extensive commander’s inquiry into his allegations.  That officer stated that he was convinced that the applicant was not treated unfairly and that the chain of command’s actions were justified.  He denied his request for redress.

On 9 June 2000 the Office of The Judge Advocate General informed the applicant that the officer designated to act on behalf of the Secretary of the Army had reviewed his Article 138 complaint, and determined that the General Court Martial Convening Authority (GCMCA) action on his complaint was proper.

With his request the applicant submits copies of letters and certificates of appreciation, letters of recommendation, and copies of approved award recommendations.

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 courts-martial rules of evidence and may consider any matter, including unsworn statements the commander reasonably believes 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.

That chapter provides in pertinent part that an NJP may be set aside upon a determination that, under all the circumstances of the case a clear injustice has resulted.  A clear injustice means that an unwaived legal or factual error has clearly and affirmatively injured the substantial rights of the soldier.  New evidence unquestionably exculpating the individual is a cited example whereas the fact that a soldier's subsequent performance has been exemplary or that the punishment adversely effects the career potential is expressly excluded from the definition of clear injustice.
 
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 the right to consult with counsel who was obliged to advise him of his rights, including his right to demand trial by court-martial where, with the assistance of counsel and the safeguards of the rules of evidence, he could have argued technical matters.  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 his rights. The applicant has submitted neither probative evidence nor a convincing argument in support of his request that the nonjudicial punishment be set aside and that all his rights and privileges be restored.  The applicant also has not provided any good reason why the record of nonjudicial punishment should be removed from his official file.

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 remaining requests.  

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

5.  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 that requirement.

6.  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

___hbo__  ___slp___  ___jh____  DENY APPLICATION

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

INDEX

CASE ID	AR2000046540	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010213	
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.  21	126.00	
2.  267	128.00	
3.	133.00	
4.		
5.		
6.