IN THE CASE OF:	  

		BOARD DATE:  6 February 2014

		DOCKET NUMBER:  AR20130010453 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his military records by showing the nonjudicial punishment (NJP) indicated on his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) was suspended.

2.  The applicant states his commander suspended his NJP based on his three Army Good Conduct Medals, Purple Heart, years of service, and character of his service.  Three weeks after accepting his NJP he retired due to permanent physical disability.  He contends that his commander absolutely did not intend to punish him by reducing his rank or follow through with the NJP.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active duty).

CONSIDERATION OF EVIDENCE:

1.  On 15 May 2008, the applicant enlisted in the Regular Army with prior active duty service.

2.  On 1 December 2010, the applicant was promoted to sergeant/pay grade E-5.

3.  The DA Form 2627 shows the applicant accepted NJP on 9 August 2012 for wrongfully using marijuana.  It further shows:

	a.  he did not demand trial by court-martial;

	b.  he requested a closed hearing;

	c.  he indicated he would present matters in defense, extenuation, and/or mitigation;

	d.  the imposing commander found the applicant guilty of all specifications;

	e.  the imposing commander directed filing the NJP in the restricted folder of his Army Military Human Resource Record;

	f.  the NJP imposed consisted of reduction to specialist/pay grade E-4 and forfeiture of $500.00 pay; and

	f.  the applicant did not appeal the NJP.

4.  The applicant's DD Form 214 shows he retired on 28 August 2012 in the rank of sergeant/pay grade E-5 due to permanent physical disability.

5.  Army Regulation 27-10 (Military Justice) provides that in cases where an administrative error results in incorrect entries on the DA Form 2627, the appropriate remedy is generally an administrative correction of the form.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by showing the NJP indicated on the DA Form 2627 was suspended because that was the intent of the imposing commander.

2.  The evidence in this case suggests that NJP was properly imposed against the applicant in accordance with applicable laws and regulations in effect at the time with no indications of any procedural errors that may have jeopardized his rights.

3.  The evidence also suggests that he was afforded due process in that he was afforded the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.

4.  The applicant accepted NJP in lieu of demanding trial by court-martial and, furthermore, did not appeal the NJP to a higher authority.

5.  The available evidence in this case clearly shows the imposing commander stated in the DA Form 2627 that the applicant was to be reduced in rank and to forfeit pay.  However, his DD Form 214 issued just a few weeks after the NJP indicates he was retired in the rank he held prior to imposition of the NJP.  Unfortunately, the evidence is insufficient to determine which document is in error.

6.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130010453



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ABCMR Record of Proceedings (cont)                                         AR20130010453



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