MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           9 December 1999                   
	DOCKET NUMBER:   AR1999022806

	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. Loren G. Harrell		Director	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston 		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Mr. James P. Steuve		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:  Reconsideration of his earlier application to correct his records by expunging a record of nonjudicial punishment (NJP).

APPLICANT STATES:   In effect, that if he had been charged with absence from his appointed place of duty under Article 86, UCMJ rather than willful disobedience under Article 91, UCMJ them he could have prepared a defense.  He notes that, after his permanent change of station, his new commander set the NJP aside.  In effect, he wants a legal opinion as to the propriety of charging him under Article 91 vice Article 86.  He states, in effect, that he did commit the offense but then he did not care about his career.  He has since become dedicated to being a career soldier.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are 
military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case on 21 May 1998 (COPY ATTACHED).

The applicant submits copies of a 15 September 1998 action by his subsequent commander that set aside the 3 May 1996 NJP and a 4 November 1998 advisory opinion from The Judge Advocate General to the Deputy Chief of Staff for Personnel.  These constitute new evidence that requires Board consideration.  

The subject advisory stated that, since the setting aside action was outside of the regulatory 4-month window and the subsequent commander had neither explained what unusual circumstances had been found to exist nor made a finding of clear injustice, the setting aside action was “void and had no legal effect.”
  
The applicant was punished under Article 91, UCMJ for willful disobedience of a superior ranking NCO and fo disrespect to the same NCO by saying, “You don’t 
f____ing tell me how to run my damn motor pool, f____ that and f___ you.”

The applicant began his appeal of the NJP by arguing there was insufficient evidence to have found him guilty beyond a reasonable doubt of the offense of willful disobedience.  The appeal was denied.

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.  This Board considers that the applicant’s words clearly constitute disrespect and as such constitute, in and of themselves, sufficient basis to have punished him for violation of Article 91, UCMJ.  The willful disobedience specification is, by comparison, insignificant.  

2.  While there is a distinction between willful disobedience and simply not being at an appointed place of duty at specified time, the distinction is unimportant in this context.  Furthermore, the applicant had, unsuccessfully, raised the same argument in his appeal of the NJP.

3.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

___JHL__  __TDH__  __JPS___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999022806	
SUFFIX		
RECON		
DATE BOARDED	19991209	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	126.04	
2.		
3.		
4.		
5.		
6.