MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           9 September 2003 
		DOCKET NUMBER:  AR2003089226

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas A. Pagan		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 his rank be restored to him.

APPLICANT STATES:  In effect, that he was unjustly reduced from the pay grade of E-4 to the pay grade of E-2 for spending a night in Saigon.  He further states that he spent 20 months in Vietnam and was severely punished for something that was openly done by enlisted men and officers as well.  He goes on to state that he has suffered the disgrace of his reduction for over 30 years and was afraid to face military justice at the time for fear of being transferred to a dangerous combat unit if he demanded trial by court-martial.

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

He enlisted in Altoona, Pennsylvania, on 13 September 1968 for a period of 3 years and training as a stock control and accounting specialist.  He successfully completed his training and was advanced to the pay grade of E-4 on 10 January 1969.  He was transferred to Vietnam on 30 June 1969. 

On 5 December 1970, while serving with the United States Army Mortuary – Saigon, nonjudicial punishment (NJP) was imposed against him for being in a Vietnamese establishment in Saigon during the hours of curfew (violation of a lawful regulation).  His punishment consisted of a reduction to the pay grade of E-2 and he did not appeal the punishment.  He also did not demand trial by court-martial nor did he submit matters in extenuation, mitigation or defense.

He was reassigned to the 5th Light Equipment Maintenance Company on 7 January 1971, where he remained until he was transferred to Oakland Army Base, California, for honorable release from active duty (REFRAD) as an early overseas returnee on 27 April 1971.  He was REFRAD in the pay grade of E-2 and was transferred to the United States Army Reserve Control Group (Reinforcement) where he remained until he was honorably discharged on 1 June 1974.

Army Regulation 27-10 prescribes the procedures for administration of military justice.  Paragraph 3-18 of that regulation provides, in pertinent part, that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the soldier committed the offense.  If the commander decides to impose the punishment he or she will announce the punishment to the soldier and explain the soldier’s appellate rights and procedures.

Paragraph 3-23 of that regulation provides, in pertinent part, that the imposing commander, a successor in command or the next superior authority may remit, mitigate, suspend, vacate or set aside punishments imposed under NJP.

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.  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.

2.  It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  The punishment was not disproportionate to the offense and there is no evidence of any violations of the applicant’s rights.  

3.  The applicant was afforded the opportunity to demand trial by court-martial, whereas he could have asserted his innocence before a jury of his peers and elected not to do so.  He was also afforded the opportunity to submit matters in his own defense and to appeal his punishment.  He elected not to do either.

4.  While the applicant may now believe that he did the wrong thing by not challenging the charges against him, he has provided no evidence to show that he was unjustly punished for violation of a lawful regulation.

5.  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

__wtm___  ___tap __  ___slp __  DENY APPLICATION

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

INDEX

CASE ID	AR2003089226	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/09/09	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  322	133.0000/REDUCTION IN GRD	
2.		
3.		
4.		
5.		
6.