MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:            25 September 2001                  
	DOCKET NUMBER:   AR2000048354

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Ronald E. Blakely		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 his records be corrected by transferring his nonjudicial punishment (NJP) (DA Form 2627) from the Performance portion to the Restricted portion of his official file, or set aside.

APPLICANT STATES: That his NJP should be set aside for clear injustice in that (1) the matter resulted from a major disconnect between his unit in White Sands Missile Range (WSMR), New Mexico and his duty station 250 miles away; (2) the matter was resolved by his going to the Drill Sergeant School (DSS) at Fort Benning, Georgia, contrary to the charge; (3) he was referred to too high a level for adjudication; (4) without adequate consideration by the command of less drastic alternatives in accordance with the applicable regulations; (5) he was left to face the commanding general with inadequate representation by the defense counsel; and resulted in grossly disproportionate penalties for the alleged offense.  He provides five letters of support.

The applicant also states he received conflicting and late instructions regarding temporary duty (TDY) training and permanent change of station (PCS) assignment, and that the individuals responsible for not properly notifying him of his TDY and PCS instructions were all relieved of their duties.

The applicant’s contentions are supported by way of his previous petition to the Departmental Suitability Evaluation Board (DASEB).  The petition is not signed or dated and appears to have been prepared by a General Attorney, serving as counsel, from the US Army WSMR, New Mexico.  It contains enclosures in support of the petition.

In the petition counsel specifically contends that a variety of errors and injustices should compel the Board to set-aside the non-judicial punishment under Article 15, UCMJ.  Counsel asserts (a) that “the accusation … was not proven;” (b) that he “had valid defenses of inability to comply and mistake;” (c) that he “was seriously misdirected or ignored by [his] defense counsel in all aspects of [his] case,” and; (d) that “[t]he punishment imposed was disproportionate to the offense under the circumstances and in light of [his] record of service.”  The assertions are enumerated by counsel in an extensive brief.

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

On 26 August 1985, he enlisted in the Army Reserve Delayed Entry Program for 8 years.

On 19 September 1985, he enlisted in the Regular Army for 4 years.  He completed his required training and was awarded military occupational specialty (MOS) 13B (Cannoneer).

On 10 December 1986, he accepted NJP under Article 15, Uniform Code of Military Justice for wrongfully using marijuana during the period 6 September to 
6 October 1986.  His punishment included a reduction to pay grade E-2, forfeiture of $358 pay per month for 2 months and 34 days of extra duty.

In January 1989, he completed training for and was awarded MOS 74B (Information Systems Operator/Analyst).  

On 20 January 1989, he accepted NJP for being absent without leave for the period 6 to 12 January 1989.  His punishment was a forfeiture of $225 pay. 

In May 1996, he was assigned to the White Sands Missile Range (WSMR), New Mexico, for duty in his MOS.  He was further assigned to the Big Crow Project and attached to Kirtland Air Force Base (KAFB).  The Big Crow Project is an electronic warfare project using NKC-135 aircraft.

On 9 June 1997, he reenlisted for 6 years.

On 30 March 1998 a reassignment notification was received and forwarded by the WSMR to the applicant’s unit, showing TDY at Fort Benning, Georgia for Drill Sergeant assignment training, for the period 3 August to 2 October 1998, with a reassignment to Fort Jackson, South Carolina as a Drill Sergeant to arrive there on 20 November 1998.  Special instructions were provided, including the requirement to request leave in conjunction with the transfer.  The instructions also included that the applicant “report to Bldg 464 at 0730 hours on 3 JUNE 1998 for a reassignment interview and further processing.”  He was also advised that if “unable to make this appointment, call 678-7780/7380 to reschedule”, and that “”FAILURE TO SHOW” for a scheduled appointment may result in publication of PCS orders without his/her input.”

On 6 May 1998, the applicant’s commander was notified that he had been tentatively selected to attend Drill Sergeant School (DSS) Class 10-98 starting 
3 August and ending 2 October 1998, and that he would receive a 2 year Drill Sergeant tour of duty at Fort Jackson, South Carolina.  This notification included instructions for the chain-of-command, including a request for verification that the applicant was qualified for Drill Sergeant duty.

On 6 May 1998, Departmental assignment instructions were issued for the applicant for the TDY training and assignment, and that the applicant must be qualified for Drill Sergeant duties.

On 19 May 1998, the personnel section notified the applicant’s Headquarters Company Non-commissioned Officer In Charge in writing that the applicant “must attend a levy brief on the 3rd of June 1998 in order to process your paperwork on time “ORDERS”,  “You must also have a current physical if your due!  HIV screening must be within 2 yrs from your report month.  Questions – SPC Little DSN: 258-7780 CML: (505) 678-.“

On 14 July 1998, the applicant was notified in writing to attend a reassignment briefing at 0730 hours on 2 September 1998.

During the period 13 to 17 July 1998, he was on ordinary leave.

On 21 July 1998, Orders 202-2, WSMR announced the reassignment of the applicant to Fort Jackson, South Carolina with a reporting date of 20 November 1998.

During the period 23 to 31 July 1998, the applicant was on ordinary leave, which was approved on 22 July 1998.  Records are noted that he needed to take this leave to put him below the maximum of 60 days.  His supervisor noted that the reason for leave was PCS leave.  This was relayed to WSMR by the Big Crow Program Office.

In a FAX from the applicant’s supervisor, also a staff sergeant E-6, to the applicant’s company, provided the Headquarters Company Non-commissioned Officer In Charge a copy of the applicant’s leave request.  He advised the NCO that “He [the applicant] needs to take this excessive before he go[es] to drill sergeant school to put him below 60 days.  His school is 3 Aug to 2 Oct 98.  When he returns he will out process and take additional leave.”

On 23 July 1998, Temporary Duty orders were issued for the period 3 August to 2 October 1998 to attend DSS with a proceed date of 2 August 1998.  This authorization erroneously showed “TDY ENROUTE” instead of TDY and return.

On 5 August 1998, the applicant was issued airline tickets to Atlanta, Georgia enroute to Fort Benning for travel on the same date.  He arrived at the school on 
6 August 1998, after the start date of the course.  He was not accepted and returned to his home station.

On 15 September 1998, Order Number 258-12, Total Army Personnel Command (PERSCOM) announced the promotion of the applicant to pay grade E-7, effective 1 October 1998.

On 30 September 1998, he accepted NJP, from a general officer, his commander who exercised general court-martial jurisdiction, for misconduct by his failure to go to his appointed place of duty at the prescribed time, to wit: DSS.  His punishment included a forfeiture of $970 (suspended), extra duty for 45 days and to be reprimanded.  He did not demand trial by court-martial, and he did not appeal the punishment.  The NJP was filed in the applicant’s Performance fiche of his official military personnel file.
On 30 September 1998, he was issued a General Officer Memorandum of Reprimand (GOMOR) for “inexcusable misconduct” by not going to the DSS.  The general stated “You had orders and were placed on leave to give you time to get there.  When you asked to extend your leave, it was denied, and you were reminded again that your place of duty was Fort Benning.  You chose not to go to your appointed place of duty…..”  It was directed to be filed as an attachment to the NJP.  The GOMOR was erroneously not filed in the Performance portion of his official military personnel file.

On 2 October 1998, Order Number 275-1, PERSCOM announced the revocation of Order Number 258-12, pertaining to the applicant’s promotion to pay grade   E-7.  Based on his NJP and an adverse Noncommissioned Officer Evaluation Report (NCO-ER) for the period February 1998 to January 1999, Departmental officials directed removal of his name from the Sergeant First Class Selection List, which caused the revocation of his promotion order.

On 30 August 1999, he was advised that the CY99 Sergeant First Class/ANCOC Promotion/Selection Board, after a comprehensive review of his Official Military Personnel File (OMPF), determined he was to be barred from reenlistment.  The Departmental bar was based on the NJP he received on 30 July 1998 and an adverse NCO-ER he received for the period February 1998 to January 1999.  His mandatory separation date was established as 31 July 2000.

On 28 October 1999, he appealed his bar to reenlistment to the Enlisted Records and Evaluation Center (EREC), Indianapolis, Indiana.

On 7 April 2000, the EREC denied his appeal.

On 10 June 2000, the applicant requested that the EREC extend his mandatory separation date to 31 October 2000.

On 15 June 2000, he requested the DASEB transfer his most recent NJP from his Performance fiche to the Restricted fiche.  He stated it was wrong, and that it has served its purpose, and he had a good record.

On 27 July 2000, the EREC approved his request for an extension of his separation date, and established his mandatory separation date as 31 October 2000.

On 27 September 2000, the DASEB denied transfer of the NJP to his Restricted fiche.  It further concluded that it did not have the authority to set aside NJP and advised the applicant that if he had sufficient evidence to justify removal of the NJP he may petition this Board.  The DASEB noted the applicant provided evidence that he was advised of his legal rights and after seeking the advice of counsel decided to accept the NJP in lieu of courts martial, and that he did admit guilt in his hearing.  It was also noted that the evidence shows that the NJP hearing was appropriately conducted and is properly filed in the applicant’s records, and that there does not appear to be anything unjust about this case. 

On 31 October 2000, he was honorably discharged, under Army Regulation 635-200, paragraph 16-8 (reduction in force).  He was assigned a Reentry Code of RE-4.  He was authorized half separation pay.

The applicant’s NCO-ER appeal of the report covering the period February 1998 to January 1999, was received by the Enlisted Special Review Board (ESRB) on 
1 January 2001.  ESRB officials specified that the applicant failed to show the report was inaccurate or unjust, to nullify the presumption of regularity, or to provide evidence to show an inadequate evaluation of his performance and potential demonstrated during the rating period.  It was also specified that upon interview, the applicant’s reviewer of the report stated “the appellant had missed his pre-brief for Drill Sergeant School and decided not to attend the course…..the appellant didn’t let anyone know he didn’t attend the brief until 45 days later…..the appellant was not proactive in attending Drill Sergeant School.”  The appeal was denied.

Army Regulation 27-10 (Military Justice) provides guidance for the administration of military justice.  Chapter 3 sets forth the policy and procedures for NJP under Article 15, Uniform Code of Military Justice.  It 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 adversly affects the career potential is expressly excluded from the definition of clear injustice.  There is no provision for the individual to apply for the command action of setting aside a punishment.

The regulation also provides, in pertinent part, that an NJP that has been wholly set aside is to be filed on the Restricted fiche of the individual's official record.  

The regulation also requires that when a soldier requests a record of NJP be transferred to the Restricted fiche the request is to be accompanied by substantive evidence that the intended purpose has been served and the transfer of the record is in the best interest of the Army.

The offense charged in the Article 15 was failure to go to appointed place of duty, Article 86(1), UCMJ.  Manual for Courts-Martial (MCM), Part IV, paragraph 10(a). The elements of that offense are “(a) “That a certain authority appointed a certain time and place of duty for the accused; (b) That the accused knew of that time and place, and; (c) That the accused, without authority, failed to go to the appointed place of duty at the time prescribed.”  MCM, Part IV, paragraph 10(b)(1).

Under Rule for Court-Martial (RCM) 916(i), “it is defense to refusal or failure to perform a duty that the accused was, through no fault of the accused, not physically or financially able to perform the duty.”  This is a strictly objective test.

In the absence of evidence to the contrary, a presumption of regularity applies that the records of the individual concerned are correct.

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.  The applicant is not entitled to correction of his record by transferring his NJP from the Performance portion to the Restricted portion of his official file, or to have it set aside.

2.  The applicant elected NJP in lieu of demanding trial by court-martial; thereby voluntarily giving up the right to an evidentiary defense in a court-martial which he might have otherwise been entitled to, and he authorized the general to decide the issue of his guilt or innocence, and punishment.

3.  The NJP was imposed in compliance with applicable laws, regulations and policies.  The punishment was neither unjust nor disproportionate to the offense, and there is no evidence of any substantive violation of any of the applicant's rights.  The punishment imposed was less than maximum, and he did not appeal the punishment of the NJP at the time.

4.  The NJP is properly filed on the Performance fiche of the applicant's official file, and should not now be set aside or removed as requested by the applicant.  The proceedings were conducted in accordance with applicable law and regulations; the punishment imposed was within legal limits; and the record of proceedings (DA Form 2627) is properly on file.  The Board notes here that the GOMOR issued to the applicant on 30 September 1998 is erroneously not filed on the Performance fiche as directed.  However, this issue will not be further addressed since it will have no further effect on the applicant or the Army.

5.  The applicant’s contentions have been noted; however, the evidence of record clearly shows the applicant was knowledgeable of his pending TDY and reassignment far in advance of his departure dates.  With the exception of the TDY orders stating “TDY ENROUTE” instead of TDY and return, there were no harmful conflicting instructions.  He took leave in preparation for his transfer.  His TDY authorization was issued on 23 July 1998, sufficiently in advance of his report date under the circumstances.  His PCS orders were issued on 21 July 1998, in advance of his report date of 20 November 1998 to Fort Jackson.  He was initially advised of the required briefings on 30 March 1998 for his impending training and reassignment and the requirements he must meet.  He was also notified at later dates.  The applicant took leave in preparation of the TDY and transfer.  The command was notified of actions to be taken and there is no evidence in the available records that his command did not properly prepare him for his reassignment or that he received conflicting orders.  There is no evidence 
to show the applicant was not qualified to attend DSS.  It is noted that he did travel to his TDY station, but he was not enrolled into the DSS training and returned to his unit based on his late arrival.  It is also noted that when interviewing his rating chain concerning his appeal of his NCO-ER, ESRB officials were advised that the applicant had missed his pre-brief for DSS and decided not to attend the course, that he didn’t let anyone know he didn’t attend the brief until 45 days later, and he was not proactive in attending the DDS.

6.  His contentions that the general who gave him the NJP used faulty procedures and did not prove his misconduct, that his defense counsel ignored his plea and urged him to admit guilt and take the punishment, that the punishment was disproportionate to the offense and his record of service, and that the individuals responsible for not notifying him of his TDY and assignment instructions were all relieved of their duties, are not supported by the evidence of record.  He has not shown the foregoing is other than contentions on his part.

7.  All of the applicant’s contentions have been reviewed, however, it is clear to the Board that the applicant did not attend his DSS schooling as he was ordered to do so through his own volition, not incompetence of personnel specialists or his chain of command.  He clearly knew of his TDY and PCS requirements but failed to comply.  This misconduct caused the NJP, the GOMOR, the promotion revocation, the Departmental bar to reenlistment, and his eventual separation.  It would appear that the applicant did not make the necessary arrangements in preparation for his schooling and PCS as would be expected of a senior non-commissioned officer, but now attempts to blame others for the eventual consequences and misfortunes.  The NJP was justified in this case.

8.  The preceding is supported by the evidence of record, including the advisory opinion and the determinations of the DASEB and the ESRB.

9.  Counsel’s contentions have been noted by the Board; however, they are not adequately supported by the evidence of record.  His contention that the offense listed in the NJP was not proven has no merit.

     (a)  There is ample evidence in the record, available at the time to the commander who imposed the Article 15, to show that U.S. Total Army Personnel Command (PERSCOM), a competent authority, had ordered the applicant to report to Drill Sergeants’ school on Fort Benning not later than 3 August 1998.  The order is documented by the PERSCOM memorandum dated 6 May 1998, provided by the applicant.

     (b)  The record also shows that the imposing commander had ample evidence to find that the applicant was well aware of the time and place of his duty.  The applicant’s counsel acknowledges that the applicant had received a packet from the White Sands Missile Range (WSMR) on 10 June 1998 informing him of his selection for Drill Sergeants’ school.  This notice arrived well in advance of the start of the school on 3 August 1998.

     (c)  The record also shows that the imposing commander had ample evidence to find that the accused failed to go to the Drill Sergeants’ school on Fort Benning on or before 3 August 1998.  According to counsel, the applicant admitted his failure to arrive at Fort Benning on or before 3 August 1998 to the imposing commander during the administration of the NJP.

     (d)  The record available to the imposing commander was more than adequate for the imposing commander to have concluded beyond a reasonable doubt that the applicant committed the charged offense.

10.  Counsel’s contention, that he enjoyed the defenses of inability and ignorance or mistake of fact, is likewise meritless.  

     (a)  Although counsel and applicant assert that the applicant was unable to travel to Fort Benning as scheduled due to a failure of the command to issue appropriate travel orders on a timely basis, the matters presented do not support this claim 

     (b)  It is common practice in the Army for soldiers to make flight reservations through official travel well in advance of receipt of orders once they have been informed of a set TDY requirement.  It is also a common occurrence for TDY orders to be issued only days before the required travel.  Although the applicant was aware of his TDY at least as early as 10 June 1998, he apparently took no action to arrange the necessary travel.  The record includes a copy of TDY orders to Fort Benning that the applicant states he received on Thursday, 30 July 1998, several days in advance of the required travel on Sunday, 2 August 1998.  While it is true that the orders appeared to be one-way orders, they would have sufficed for timely travel to Drill Sergeants’ school.  Once on Fort Benning, the applicant could have addressed their deficiencies to ensure his ability to return to his permanent duty station.  Instead of purchasing tickets with these orders, the applicant squandered the last remaining business day of the week debating the deficiencies of the orders with the company clerk at WSMR.  An entire business day passed during which the applicant could have entered the local official travel office to obtain the tickets necessary for his travel.  Despite this dereliction, the applicant would have been able to obtain a ticket during the weekend.  The orders themselves advise the recipient of the existence of the 24-hour, 365-day national emergency travel center.  Had the applicant exercised ordinary diligence by calling the number listed, he would have been able to obtain the necessary tickets for his travel.  The defense of inability does not exist in this case.

     (c)  Counsel’s assertion that the applicant’s ignorance or mistake of fact excuses his failure to go to his appointed place of duty at the time prescribed is also meritless.  To support his assertion of the defense of ignorance or mistake of fact, counsel relies on obvious blundering by an incompetent personnel clerk to establish confusion in the mind of the applicant.  For the offense of failure to go under Article 86, UCMJ, “the ignorance or mistake must have existed in the mind of the accused and must have been reasonable under all the circumstances.”  RCM 916(j)(1).  

     (d)  As for ignorance or mistake in the mind of the applicant, the applicant’s records indicate a GT score of 112, almost one full standard deviation above the average intelligence level.  The applicant’s records indicate that he was a staff sergeant, recently selected for promotion to sergeant first class, and that he had well over 10 years of active service with the Army.  With his raw intelligence and the experienced gained with over 10 years of active service, it is reasonable to expect that the applicant subjectively understood that his Department of the Army (DA) selection for Drill Sergeants’ school imposed an obligation on him to attend that school unless competent authority intervened.  Under all the circumstances, this is a reasonable objective expectation.  The fact that the applicant purportedly spent Friday, 31 August 1998 attempting to clarify his orders indicates that he understood his obligation to report to Drill Sergeants’ school as ordered.  It is also reasonable to expect that the applicant, an intelligent, experienced non-commissioned officer, would subjectively understand that an obviously blundering company clerk does not have the authority to countermand DA orders.  Again, under all the circumstances, this is a reasonable objective expectation.  The defense of ignorance or mistake of fact does not exist in this case.

11.  Counsel’s third contention, that the applicant “was seriously misdirected or ignored by [his] defense counsel in all aspects of [his] case,” is not supported by the matters presented by the applicant and his present counsel.  Although the present counsel explicitly raises ineffective assistance of counsel by the original defense counsel, the present counsel’s discussion revolves around what is essentially a tactical decision entirely in the hands of the applicant: whether to accept adjudication of the matter under Article 15, UCMJ.  Counsel and applicant both imply that the original counsel failed to explore the defenses discussed above, and that he failed to adequately advise the applicant on the Article 15 process itself.  Neither of these claims is substantiated by any evidence apart from the applicant’s own assertions.  The first portion of the claim is moot, as neither defense exists in this case.  The second claim is unpersuasive, because the applicant is not unfamiliar with the procedures of non-judicial punishment.  His restricted fiche contains two previous records of punishment under Article 15, UCMJ, one dated 10 December 1986, for marijuana use in violation of Article 112a, UCMJ, and one dated 30 January 1989, for absence without leave in violation of Article 86, UCMJ.  That the applicant has not only experienced two previous non-judicial punishments prior to the one that is the subject of his application, but that he had previously experienced punishment for violation of the same article, draws into question the applicant’s assertion that he was a neophyte in matters of non-judicial punishment, poorly served by an uncaring or incompetent counsel.

12. Counsel’s assertion that “[t]he punishment imposed was disproportionate to the offense under the circumstances and in light of [the applicant’s] record of service.” is likewise without legal merit.

     (a)  The record does not indicate why the commanding general chose to adjudicate this matter himself.  Although policy shows a preference for the application of NJP at the lowest possible level of the chain of command, it is well within the province of the commanding general to adjudicate an Article 15 of a subordinate non-commissioned officer.  Absent some showing that the adjudication was improperly influenced or motivated, there is no demonstrable error or injustice in the mere fact that the commanding general personally executed the NJP.

     (b)  Contrary to the assertion of counsel, the punishment imposed as a result of the NJP was not disproportionate to the offense.  A suspended forfeiture of $970.00, 45 days extra duty and a reprimand are in fact a moderate punishment for a failure to go to a prestigious, DA-selected course.

13.  The final complaint of counsel is essentially that the commanding general “effectively ended [the applicant’s] career on a single, ambiguous incident.”  To support this assertion, counsel insinuates that the referred NCOER for this same time period, his removal from the promotion list, his bar to reenlistment, and his eventual removal under the QMP all flowed from the adjudication of the NJP by the commanding general, rather than from the underlying misconduct by the applicant.  The falsity of this assertion is clear, as is the fact that it was not this “one negative incident [that] overshadow[ed] the entire positive course of a career,” resulting in the applicant’s eventual separation, but rather an extension of an existing pattern of misconduct.

14.  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.

15.  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

_jns____  __reb___  _le_____     DENY APPLICATION

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

INDEX

CASE ID	AR2000048354	
SUFFIX		
RECON		
DATE BOARDED	20010925	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  126	NJP	
2.		
3.		
4.		
5.		
6.