MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            27 February 2001
	DOCKET NUMBER:   AR2000048775

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Roger W. Able		Member	
	Mr. Melvin H. Meyer		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 returned to the pay grade he held prior to being reduced as a result of nonjudicial punishment (NJP) imposed, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

APPLICANT STATES:  In effect, that he was reduced in grade for being absent without leave (AWOL) and was not guilty of the charge.  He further alleges that the reduction in grade that occurred was improper because it was imposed by the Detachment Commander, who was not authorized to do so.  The applicant acknowledged that he has no evidence to submit because his records were destroyed by fire and he has been unable to obtain any records although he has attempted to in the last year.  He provided a further explanation upon being queried by the Board, in which he claims that many Judge Advocate General (JAG) officers admitted that the NJP action was improper but did nothing to correct it.  He contends that this improper action occurred because of racial prejudice against him because he was a black soldier.  He claims that because of this racial prejudice he lost his permanent pay grade of E-5 and all the time in grade he had accrued to that point.  He also indicates that it took him four and a half years to regain his E-5 pay grade and had this injustice not occurred, he is convinced he would have attained the pay grade of E-8 or E-9 prior to his retirement.  

EVIDENCE OF RECORD:  The applicant's military records were not available for review by the Board.  However, there were copies of six separation documents that were issued to the applicant and verify these specific periods of active duty served between 13 September 1950 and 30 September 1971.  

All six of the available separation documents were authenticated by the applicant with his signature, on the date they were issued, and serve to confirm that he verified the data contained in the separate separation forms on the specific separation dates they were issued. 

There is a Department of Defense (DD) Form 214 (Report of Separation from the Armed Forces of the United States) on file that verifies that the applicant was ordered to and entered active duty as a member of the Army National Guard (ARNG) on 11 September 1950.  It also confirms that at the time he entered this period of active duty he held the rank of sergeant (SGT/E-5), with a date of rank (DOR) of 16 March 1950, and that he still held that rank and pay grade when he was honorably released from active duty (REFRAD) on 13 September 1951.

A second DD Form 214 on file confirms the applicant was again ordered to and entered active duty on 7 February 1952, this time as a SGT/E-5 in the United States Army Reserve (USAR).  This form also confirms that he served on active duty until 13 January 1954, at which time he was honorably REFRAD in the rank and pay grade of corporal/E-4 (CPL/E-4).  This verifies that he was reduced in grade during this period of enlistment; however, the separation document provides no information in regard to the specific reason for the reduction.  

A third DD Form 214 on file, covering his active duty service between 23 March 1956 and 22 March 1962, reveals that when the applicant reenlisted for this period of service, at Fort Hood, Texas, he held the rank and pay grade of
CPL/E-4, with a DOR of 12 May 1953.  It also indicates that on the date of his REFRAD from this period of service he held the rank and pay grade of SGT/E-5, with a DOR of 1 November 1957.  

The available evidence also includes the final DD Form 214 issued to the applicant on 30 September 1971, the date he was REFRAD for retirement.  This document confirms that on the date of his REFRAD he had completed a total of 20 years and 7 days of active military service and held the rank and pay grade of sergeant first class/E-7 (SFC/E-7).  It also verifies that on the day following his separation from active duty he was placed on the Retired List in that rank and pay grade. 

Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 prescribes requirements, policies, limitations, and procedures for imposing NJP, under the provisions of Article 15 of the UCMJ.  Paragraph 3-18 states, in pertinent part, that the imposing commander will ensure that the soldier is notified of the intent to dispose of the matter under the provisions of Article 15, UCMJ, of the maximum punishment which the commander could impose, and to inform soldiers of their rights. 

Paragraph 3-18 b-e lists the rights to which soldiers are entitled, which includes the right to remain silent, to counsel, and to demand trial by court-martial.  In addition, soldiers have the following additional other rights:  to fully present their case in the presence, except in rare circumstances, of the imposing commander; to call witnesses; to present evidence; to be accompanied by a spokesperson; to request an open hearing; and to examine available evidence.  Finally, paragraph 3-18m gives soldiers the right to appeal the punishment imposed.  

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 Board noted the applicant’s contention of racial prejudice, however, while taking discrimination charges very seriously, finds no evidence that demonstrates he was the victim of racial prejudice.  While the specific facts and circumstances surrounding the imposition of the NJP and resultant reduction are not on file, the Board presumes government regularity in the NJP process.

2.   By law and regulation, the applicant would have been entitled to certain rights in connection with the imposition of the NJP in question, which would have included his right to appeal the punishment imposed.  Lacking evidence to the contrary, the Board finds no reason to believe the applicant was denied these rights.

3.  Subsequent to his reduction to CPL/E-4, the applicant continued to serve on active duty for over 15 additional years and almost 30 years have passed since his retirement.  Even had the applicant’s records been available, this passage of time severely limits the Board’s ability to establish the relevant facts and conduct a thorough and accurate review of this case. 

4.  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

___js____  ___ra ___  ___mm__  DENY APPLICATION

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

INDEX

CASE ID	AR2000048775	
SUFFIX		
RECON		
DATE BOARDED	2001/02/27	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1971/09/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  277	126.0000	
2.		
3.		
4.		
5.		
6.