MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 August 2002                  
	DOCKET NUMBER:   AR2002070127

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. Thomas Lanyi		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 3 May 1991 nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) be set aside.

APPLICANT STATES:  In effect, he was acting in self-defense and therefore should not have been charged with assault.  

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

The applicant entered the Louisiana Army National Guard (LARNG) on 31 January 1989.  He entered active duty for training for completion of basic combat training and advanced individual training on 9 February 1989.  He was called to active duty in support of Operation Desert Shield/Desert Storm on 19 October 1990 with assignment to the 3673rd Maintenance Company stationed at Camp Jill, Dhahran, Saudi Arabia.

On 12 February 1991, the applicant received NJP for assault on Sergeant G____ H____ wherein he grabbed the sergeant by the shirt and pushed her against a wall.

On 17 February 1991, the applicant was involved in an incident in the bivouac area at Camp Jill, which lead to his stabbing of another soldier.

The Criminal Investigative Division (CID) investigated the incident and found that the victim had been drinking and became combative.  The witnesses reported that (earlier that evening) the victim had twice picked fights with the applicant in their room.  The two grappled and were separated.  Later, while the soldiers were outside, the victim continued to badger the applicant.  At some point the victim grabbed the applicant's girlfriend and fell.  When the victim fell the applicant jumped on top of him and stabbed him in the chest.  CID found that there was sufficient evidence to title the applicant with a charge of attempted murder under Article 80, UCMJ.  

In the applicant's own statement, he contended that he acted strictly in self-defense.  He admitted that he had the knife in his pocket and used it on the victim without hesitation when he was attacked.

Court-martial charges were preferred against the applicant and an Article 32b, UCMJ investigation commenced on 27 March 1991.  The applicant was notified of his rights and he appeared, with counsel, on 8 April 1991.  Only parts of the proceeding are of record.  The record contains 7 sworn statements from witnesses to the incident.  All concur that the victim was drunken and aggressive throughout the evening.  The specific findings of the Article 32 hearing are not of record.  However, it appears that there was insufficient evidence to support a trial by court-martial on an attempted murder charge.  A decision was made that the remaining aggravated assault charge should be disposed through nonjudicial punishment proceedings.

On 2 May 1991, the applicant received NJP for the incident on the reduced charge of assault with a means likely to cause grievous harm.  The applicant appealed the punishment of forfeiture of $400 per month for two months.  The punishment was upheld.  A bar to reenlistment was also imposed at this time.

On 4 May 1991, the applicant's company commander proposed separation of the applicant under the provisions of Army Regulation 635-200, chapter 14-12c, commission of a serious offense.  The applicant, after consulting with a staff legal officer, invoked his right to have counsel and to submit statements in his own behalf.

The discharge authority approved the recommendation for discharge, directed that the applicant be separated for misconduct, given a General Discharge Certificate, and not retained in the Individual Ready Reserve.

The applicant was discharged on 28 June 1991 with a General Discharge Certificate.  He was shown to have had 8 months and 10 days of creditable service, 6 months and 14 days prior active service, and 1 year, 4 months, and 4 days prior inactive service. 

The Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade of his characterization of service and narrative reason separation and denied the applicant any relief on 8 March 2001.  

Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving offenses in which non-punitive measures are considered inadequate or inappropriate.  The imposing commander is not bound by the formal 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.

Chapter 3 of the regulation further provides 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 affects career potential is expressly excluded from the definition of clear injustice.

Black's Law Dictionary defines self-defense as "The protection of one's person or property against some injury attempted by another."  It also states "it is never reasonable to use deadly force against a nondeadly attack."  Black's defines reasonable force as "That degree of force which is not excessive and is appropriate in protecting oneself or one's property."

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 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 the applicant's rights.  

2.  The applicant's contention that he acted in self-defense is noted.  However, the Board is of the opinion that his use of a hidden deadly weapon against an opponent who had fallen down without landing a blow exceeded any justifiable use of force in self-defense.  There is no supportive evidence that the victim was armed at the time the applicant stabbed him or that the applicant was unable to defend himself without resorting to use of a deadly weapon.

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, and the evidence of record does not support his request to set aside the contested NJP.  

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

_INW ___  __AAO__  __TL ____  DENY APPLICATION

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

INDEX

CASE ID	AR2002070127	
SUFFIX		
RECON		
DATE BOARDED	20020827	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.04	
2.		
3.		
4.		
5.		
6.