MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  15 March 2001
	DOCKET NUMBER:  AR2001052158

	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	
	M. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Thomas E. O’Shaughnessy		Member	
	Mr. Richard T. Dunbar		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 punishment under Article 15, UCMJ, be set aside.

APPLICANT STATES:  That he is making this request because he was on the company’s “primacy” in full view of the unit in which he was assigned to at Fort Hood, Texas.  He also states that he was late for formation and stayed on the porch of the unit, rather than report late.

EVIDENCE OF RECORD:  The applicant's military records show he enlisted on 30 June 1967 as a light weapons infantryman.  He served in Vietnam from 24 November 1967 to 21 November 1968.

He was promoted to the pay grade of SP4/E-4 on 10 May 1968.

On 1 April 1970, the commander notified the applicant that he was considering
punishment under Article 15, UCMJ, for being absent from his appointed place of duty from 0600 hours to 1500 hours on 1 April 1970.  The commander provided the applicant with the opportunity to submit any matters in mitigation, extenuation, or defense.

On 3 April 1970, the applicant acknowledged receipt of notification and elected not to demand trial by court-martial.  He also elected not to submit matters in extenuation, mitigation, or defense.  On that same day, the commander imposed the punishment of 7 days restriction and a reduction to the pay grade of
E-3/Private First Class (permanent).  The commander also advised the applicant of his right to appeal the punishment imposed within 72 hours.  

On 4 April 1970, the applicant acknowledged receipt of the Article 15, and admitted that he was guilty.  He stated that he requested an appeal due to the punishment imposed.  He also stated in his appeal, that he was AWOL from his appointed place of duty; however, his reasons were legitimate.  

On 25 May 1970, the applicant’s appeal was forwarded to the Division Staff Judge Advocate (SJA).  The SJA stated in his opinion that the proceedings were conducted in accordance with law and regulation and that the punishments imposed were not unjust or disproportionate to the offense committed.  The battalion commander denied the applicant’s appeal.

On 4 June 1970, the applicant was informed of the results of his appeal; however, he refused to sign his appeal. 

On 29 June 1970, the applicant was honorably discharged in the pay grade 
of E-3, under the provisions of Army Regulation 635-200, chapter 2, at his expiration of term of service  (ETS).

Army Regulation 27-10 provides guidance for the administration of military justice.  Chapter 3 sets forth the policy and procedures for nonjudicial punishment under Article 15, UCMJ.  Paragraph 3-28 governs policies on setting aside and restoration.  It provides, in pertinent part, than 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 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.

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 evidence of record shows that the Article 15 was imposed in compliance with applicable laws, regulations and policies.  A legal review also indicates the 
punishment imposed was neither unjust nor disproportionate to the offense
and that there was no evidence of any substantive violation of any of the applicant's rights.

2.  The Board notes the applicant’s contentions; however, the evidence of record shows that the applicant admitted that he was guilty and requested an appeal due to the punishment imposed. His commander denied his appeal after review by appropriate legal authorities.

3.  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.

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

__ew___  ___to___  ___rd___  DENY APPLICATION

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

INDEX

CASE ID	AR2001052158	
SUFFIX		
RECON		
DATE BOARDED	20019315	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1970-629	
DISCHARGE AUTHORITY	AR 635-200	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  277		
2.		
3.		
4.		
5.		
6.