MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 November 2000                   
	DOCKET NUMBER:   AR2000048006

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. Orville W. Troesch, Jr.		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 the Article 15 dated 15 December 1995 be expunged from her records and that her records be reconsidered for promotion to Sergeant First Class, E-7 under the 1998, 1999 and 2000 criteria.

APPLICANT STATES:  That she was defending herself from a physical attack from two people.  Witness statements were dismissed.  The parties involved had conflicting stories.  The other soldier involved received no punishment and was allowed to separate.  She was treated unjustly due to her enrollment in the Exceptional Family Member Program.  Supporting evidence is as listed on the DD Form 149; however, no court tape was included with the application.

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

She enlisted in the Regular Army on 23 June 1982.  She was promoted to Staff Sergeant on 1 May 1995.

On 6 December 1995, at one minute after midnight, the applicant had signed out of her unit at Fort Detrick, MD on permanent change of station leave enroute to Fort Lewis, WA.

On 12 December 1995, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice from her commander at Fort Detrick, MD for committing assault by striking at an individual with closed fists and throwing a glass bottle at him twice.  Her punishment was to forfeit $307.60 pay for one month and to receive an oral reprimand.  The Article 15 was filed in her performance fiche.  She appealed the punishment.  Her appeal was denied.  

The Article 15 was the result of an incident that occurred about 11:00 a. m. on    6 December 1995.  A witness friendly to the applicant, Ms. C___, stated that she and the applicant were driving on post when the applicant spotted Mr. J___ in his car and asked her to take her to his car.  She saw the applicant talking to Mr. J___ at the driver’s side window of his car.  The next thing she knew Sergeant J___ (no relation to Mr. J___) was also sitting in the car and the applicant was sitting on Mr. J___’s lap.  The next thing she saw was Mr. J___ on top of the applicant on the ground and hitting her. She attempted to help the applicant and proceeded to pull Mr. J___ off her.  After she pulled Mr. J___ off, Mr. J___ yelled that the applicant had a bottle.  The applicant threw the bottle which just missed her.  The fighting stopped and the applicant asked for her personal things from the car.  Mr. J___ said “no” and fighting started again.  The fighting stopped when a lady in a car approached.

A witness hostile to the applicant, Sergeant J___, gave a different version of the 6 December 1995 incidents but stated at one point that the applicant reentered Mr. J___’s car and pulled out a glass bottle and attempted to hit him in the head.  
Another witness stated that she saw the applicant leaning into the driver’s side window of Mr. J___’s car talking to him when Mr. J___ drove away really fast with the applicant still in the window, hanging on.  The car went about 40 feet then turned around and sped off with her still in the window.  The applicant fell from the car, she walked towards something and picked it off the ground.  Then the applicant came to the booth (apparently meaning the gas attendant’s booth) and asked the witness to call the police.  Then the applicant got into her car and drove off.

Another witness stated that she noticed a fight between three women and one man but did not notice who was fighting whom.  

In 1996, the applicant requested that the commander who imposed the Article 15 punishment set the Article 15 aside.  She stated that she was never charged by the police for assault or any other crimes.  Mr. J___ and Sergeant J___ changed their stories when questioned by the police.  The Sheriff’s Department determined the information they provided was false.  The State’s Attorney determined it was a mutual fight and charges were dropped again.  There was reasonable doubt that Sergeant J___ was an innocent bystander.  In fact, Sergeant J___ participated in the confrontation and lied about the facts.

On 17 July 1996, the commander who imposed the Article 15 denied her request to set aside the Article 15.  He stated that when he imposed the punishment he was convinced beyond a reasonable doubt that she was guilty of simple assault.  He stated that he reviewed the new evidence she provided, i. e., the audio tape from the District Attorney and the Judge, and noted that they agreed to drop all charges because they were retaliatory in nature, not because she was innocent.

On 1 April 2000, the applicant applied to the Department of the Army Suitability Evaluation Board (DASEB) for transfer of the Article 15 from her performance fiche to her restricted fiche.  In her application, she stated that the Article 15 was based on an altercation she had with two people.  Both of those individuals had questionable backgrounds and had motives to fabricate stories to her detriment.  She had learned her lesson and had striven to avoid all potential confrontations.  The Article 15 had served its intended purpose.  The DASEB noted that the Article 15 was issued by the company commander for a non-military related domestic incident which occurred about five years previously.  The punishment was light, which was indicative that the incident was not very severe.  The DASEB noted that she did not contest the misconduct.  The DASEB approved her appeal and transferred the Article 15 to her restricted fiche.

The Manual for Courts-Martial United States 1984, 1994 edition states that a person who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault.  This is also the definition of the element of simple assault.
Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice.  Paragraph 3.4 states that a commander will personally exercise discretion in the nonjudicial process, evaluate the case to determine whether proceedings under Article 15 should be initiated and determine whether the soldier committed the offense where Article 15 proceedings are initiated and the soldier does not demand trial by court-martial.  Paragraph 3.13 states that the authority to impose nonjudicial punishment charges a commander with the responsibility of exercising the commander’s authority in an absolutely fair and judicious manner.  Paragraph 3.14 states that the commander of the alleged offender must ensure that the matter is investigated promptly and adequately.  The investigation should cover whether an offense was committed, whether the soldier was involved and the character and military record of the soldier.  Paragraph 3.18J states that the imposing commander is not bound by the formal rules of evidence before courts-martial.  Paragraph 3.18L states that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the soldier committed the offense.  

Department of the Army Pamphlet 27-9, Military Judges’ Benchbook, paragraph 2-29 states that by “reasonable doubt” is intended not a fanciful or ingenious doubt or conjecture, but an honest, conscientious doubt suggested by the material evidence or lack of it in the case.  It is an honest misgiving generated by insufficiency of proof of guilt.  Proof beyond a reasonable doubt means proof to an evidentiary certainty although not necessarily to an absolute or mathematical certainty.  The proof must be such as to exclude not every hypothesis or possibility of innocence, but every fair and rational hypothesis except that of guilt. If, on the whole evidence, (the jury) are satisfied beyond a reasonable doubt of the truth of each and every element, then (the jury) should find the accused guilty.

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 Board notes the inconsistencies in the sworn statements concerning the 6 December 1995 incident.  However, the Board notes one common thread in two of the statements.  Sergeant J___ stated that the applicant pulled out a glass bottle and attempted to hit Mr. J___ in the head.  Ms. C___, who was a witness friendly to the applicant, stated that the applicant threw a bottle.
3.  The Board concludes that the applicant’s commander exercised his authority in the absolutely fair and judicious manner required by regulation and that by the standard of “beyond a reasonable doubt” he determined that the applicant was guilty of assault.  The other inconsistencies in the sworn statements may confirm or refute the fact that the applicant threw a bottle at Mr. J___ twice or only once or struck at him with closed fists in self-defense or not.  However, the Board concludes that those inconsistencies did not diminish the validity of the commander’s determination that she committed assault.

4.  The Board concludes that the appropriate commander imposed the Article 15. A soldier is always under a military authority.  The applicant may have signed out of her unit at Fort Detrick, MD but she had not yet signed in to her unit at Fort Lewis, WA.  The Fort Detrick commander was closest to the scene of the incident and it was appropriate that he take the necessary disciplinary action.

5.  Since the Board finds that the Article 15 and the punishment imposed were properly administered, it further concludes that it would not be appropriate to have the applicant’s records reconsidered for promotion.

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

__jlp___  __bjl___  __owt___  DENY APPLICATION

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

INDEX

CASE ID	AR2000048006	
SUFFIX		
RECON		
DATE BOARDED	20001109	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	126.04	
2.	131.01	
3.		
4.		
5.		
6.