PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:           30 October 2003                   
	DOCKET NUMBER:  AR2003085771

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Curtis L. Greenway		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Larry C. Bergquist		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that his 1995 reduction in grade be withdrawn and that he be reinstated to the rank and pay grade of 
staff sergeant/E-6 (SSG/E-6).

3.  The applicant states, in effect, that in May 1995, while his Oklahoma Army National Guard (OKARNG) unit was on annual training (AT) at Dugway Proving Grounds in Utah, he was involved in altercation while off duty.  He states that during the altercation a lieutenant in his unit attempted to separate him and the other soldier involved, which resulted in the lieutenant being struck in the face. 

4.  The applicant further indicates that in September 1995, his battalion commander sent him a summons through the mail, which stated that he was required to appear on 17 September 1995 in order to face charges under the Oklahoma Code of Military Justice (OCMJ).  He states that this summons was postmarked 12 September 1995; however, it was sent to the wrong address and he did not receive it until 20 September 1995.  

5.  The applicant further claims that he phoned the battalion commander on the date he received the summons, 20 September 1995, and informed him that he had just received the summons and he requested a postponement that would allow him the opportunity to travel to Altus, Oklahoma to present matters in defense, mitigation, and extenuation.  The applicant states that at this time the battalion commander informed him that the hearing had already been conducted as scheduled on 17 September 1995, that he had been found guilty, and as a result he was reduced to the pay grade of E-5.  The battalion commander also informed the applicant that he would not reconsider the matter and that he considered the applicant’s case closed.  

6.  The applicant further states that he received the notification of his reduction in October 1995, and soon thereafter he left the OKARNG.  He states that in November 2001, he rejoined the OKARNG and it was at this time that he was informed of his right to appeal his reduction to this Board by a Judge Advocate General (JAG) officer.  The applicant claims that he believes the record to be in error and unjust for the following reasons:  he never actually received advance notice of his hearing; his battalion commander abused his discretion by refusing to grant him a continuance in order to present a defense or matters in extenuation and mitigation; he never received written notice of the punishment adjudged, and he was never informed of his right to appeal the punishment as provided for on Oklahoma Form 96 (Record of Proceedings Under 44 OCMJ 2301), Part II.  

7.  In support of his application, the applicant provides copies of the following documents:  12 September 1995 Summons; the envelope used to mail the summons; a Postal Service Form 3811 (Domestic Return Receipt); and his reduction orders. 

8.  On 1 February 1996, the applicant was honorably discharged from the OKARNG after completing a total of 12 years, 5 months, and 3 days of net service during that period.  The separation document (NGB Form 22) issued to him on that date confirms that he held the rank and pay grade of sergeant/E-5 (SGT/E-5) at the time.  

9.  Orders Number 31-1, dated 15 October 1995, issued by Headquarters, First Battalion, 171st Field Artillery (MLRS), OKARNG, authorized the applicant’s reduction from staff sergeant/E-6 (SSG/E-6) to SGT/E-5, effective 19 September 1995.  The authority for this reduction was cited as paragraph 6-44b, National Guard Regulation (NGR) 600-200.  

10.  The applicant provides a copy of a Summons (OKARNG Form 96-1), dated 
12 September 1995.  This document required the applicant to appear before his battalion commander on 17 September 1995 at 1400 hours to answer charges that were set forth in an enclosed OKARNG Form 96.  This document indicated that the applicant’s commander was considering whether nonjudicial punishment (NJP) action should be taken against the applicant for the following offenses that occurred on 1 June 1995:  failure to report to duty; insubordination to a commissioned officer; and striking a commissioned officer.  

11.  The applicant provides a postal return receipt form that indicates that he received the letter containing the summons on 20 September 1995, three days after the date the summons required him to appear before his battalion commander, 17 September 1995, and one day after the punishment had been imposed that resulted in his reduction on 19 September 1995.  

12.  In support of his application, the applicant provides a memorandum from his current commander in the OKARNG.  It indicates that the applicant has been an outstanding NCO in his unit and as his current commander he fully supports the applicant’s reinstatement to the rank of SSG/E-6 due to the improper legal process used for his reduction.  

13.  In connection with the processing of this case, an advisory opinion was requested from the Army National Guard Bureau (NGB).  The Chief of the Personnel Division, NGB, returned the request without action and indicated that an informed opinion could not be provided because the applicant’s reduction was accomplished under the provisions of the OCMJ and these files are maintained by the State.  

14.  NGR 600-200 provides the policies for the management of enlisted personnel of the ARNG.  Paragraph 6-44, in effect at the time, provided reduction policies.  It stated, in pertinent part, that commanders wanting to reduce soldiers for efficiency and/or misconduct, must inform the soldier in writing of the action contemplated and the reasons, and of their right to request a reduction board.  The regulation entitles soldiers in the rank of SGT or above to request a reduction board when being considered for reduction.  The regulation also states that if appropriate, provisions of State law may be used to effect reductions for misconduct.   

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his reduction was unjust based on the failure of his commander to properly notify him and to provide him the opportunity to appeal the NJP imposed and/or the resultant reduction, and it finds this claim has merit.  

2.  Under the provisions of NGR 600-200, any soldier in the rank of SGT and above is entitled to a reduction board when being considered for reduction.  However, the regulation does state that if appropriate, provisions of State law may be used to effect reductions for misconduct.  This appears to provide the States the latitude to reduce members under their own Military Justice Codes without strict compliance with the reduction board provisions of NGR 600-200.  

3.  Notwithstanding the fact that the provisions of State Law may have provided the authority to reduce the applicant in this case, the evidence clearly shows that the summons requiring the applicant to appear was mailed to an incorrect address on 12 September 1995.  The applicant did not receive the summons until 20 September 1995, which was three days after the date he was scheduled to appear and one day after the commander had imposed the NJP that resulted in his reduction. 

4.  In the opinion of the Board, the administrative error that resulted in the late receipt of the summons by the applicant and the chain of command’s failure to respond positively to the applicant’s request for a postponement effectively denied the applicant rights to which he was entitled under the OCMJ.  

5.  As indicated in paragraph 2, Part I of the OKARNG Form 96, the applicant had the right to consult with legal counsel, to demand trial by court-martial, and/or to present matters in defense, mitigation, and extenuation at his NJP hearing.  Further, Part II of the OKARNG Form 96 clearly establishes the applicant’s right to appeal the punishment imposed.  

6.  In view of the facts of this case, the Board concludes that it would be appropriate to remove the OKARNG Form 96 and all related documents in question from the applicant’s record, to revoke his reduction to SGT/E-5, and to reinstate him to the rank and pay grade of SSG/E-6, effective 19 September 1995.  

7.  Although the Board has no authority to correct State ARNG records, governed under Title 32, the Board is of the opinion that insofar as the Department of the Army is concerned, it would be in the interest of justice to correct the ARNG records of the individual concerned as recommended below.

RECOMMENDATION:

1.  Insofar as records of the Oklahoma Army National Guard are concerned, the Board recommends that The Adjutant General of the State of Oklahoma correct the records of the individual concerned by:

a.  removing the OKARNG Form 96 and all related documents in question from the record of the individual concerned;

b.  revoking his 19 September 1995 reduction to sergeant/E-5 and reinstating his rank and pay grade to staff sergeant/E-6; 

c.  showing that he continued to serve in the rank and pay grade of staff sergeant/E-6 until being honorably discharged from the Oklahoma Army National Guard on 1 February 1996; and 

d.  correcting his pay records based on the corrections made as outlined in a, b, and c above.

2.  That the individual concerned be provided all back pay and allowances due as a result of the corrections made by The Adjutant General of the State of Oklahoma, to include back pay due as a result of the revocation of his 
19 September 1995 reduction to sergeant/E-5 and his reinstatement to the rank and pay grade of staff sergeant/E-6.  

BOARD VOTE:  

__CLG__  __EL___  __LB    __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Curtis L. Greenway
		  CHAIRPERSON

INDEX

CASE ID	AR2003085771	
SUFFIX		
RECON		
DATE BOARDED	2003/10/DD	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  322	133.0000	
2.		
3.		
4.		
5.		
6.