PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  26 September 2000
	DOCKET NUMBER:  AR1999031596

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Thomas Baxter		Member	
	Mr. Melvin H. Meyer		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 reinstatement to pay grade E-6 and in effect, consideration for promotion to pay grade E-7.

3.  The applicant states that the company commander did not have the authority to impose punishment of a reduction from pay grade E-6 to E-5.  He admits to having made a mistake and refrained from attending drills.  He indicates he was unaware of who imposed the punishment until recently when he reviewed his records.

4.  The applicant’s military records show that he enlisted in the Army Reserve Delayed Enlistment Program on 20 May 1975 and entered the Regular Army on 15 June 1975.  He served until the expiration of his term of service on 23 June 1978.  He was transferred to the Army Reserve for completion of his service obligation.  There is no evidence showing when he entered or was discharged from the Florida Army National Guard.  He is currently a member of the Individual Ready Reserve.

5.  On 13 March 1990, the applicant was administered NJP by a commissioned officer in the rank of first lieutenant (O-2), under Article 15, Uniform Code of Military Justice for disobeying a lawful order to attend active duty on or about    17 to 18 February 1990.  His punishment was a forfeiture of $75 pay and a reduction to pay grade E-5.  The individual concerned was not present and there is no appeal.

6.  On 27 March 1990, the applicant was administered NJP, by a commissioned officer in the rank of first lieutenant (O-2), under Article 15, Uniform Code of Military Justice, without his consent, for his failure to go to his place of duty on or about 7 to 8 October 1989; 3 to 5 November 1989; 2 to 3 December 1989; 19 to 21 January 1990; 2 to 4 February 1990; and, 16 to 18 March 1990.  His punishment was to be discharged from the Florida Army National Guard.  The individual concerned was not present and there was no appeal.

7.  National Guard Regulation 600-200 (Enlisted Personnel Management) indicates, in paragraph 6-43, that unless otherwise directed by the State Adjutant General, a commander with authority to promote to a grade may reduce from that grade.  Further, table 6-3 indicates that the power to promote to staff sergeant (E-6) rests with a field grade commander in the rank of lieutenant colonel or above.

CONCLUSIONS:

1.  The evidence of record shows that a company commander in the rank of first lieutenant (O-2) did not have to authority to impose the punishment of reduction from pay grade E-6 to E-5.

2.  The issue concerning the promotion to pay grade E-7 is not supported by his application.  He has not shown and the record does not show he was eligible for or recommended for promotion or serving in the higher-grade position.

3.  The Board notes that the legality of the second NJP in the file is in question.  On 27 March 1990, the company commander imposed the punishment of “Discharge from FLARNG”.  There is no regulatory provision that would authorize such punishment.  Notwithstanding this, the record should not be further corrected unless requested by the applicant.

4.  In view of the foregoing, and insofar as the Department of the Army is concerned, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by deleting so much of the NJP of the individual concerned, dated      13 March 1990, pertaining to the reduction to pay grade E-5;

	b.  by reinstating him to pay grade E-6 with appropriate pay and allowances, effective 13 March 1990; and,

	c.  by showing he was discharged from the Florida Army National Guard in pay grade E-6.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__ao____  __tb___  ___mm___ GRANT AS STATED IN RECOMMENDATION

________  ________  ________ GRANT FORMAL HEARING

________  ________  ________ DENY APPLICATION

		__Arthur A. Omartian___
		        CHAIRPERSON

INDEX

CASE ID	AR1999031596	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000926	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.131	Promotion	
2.		
3.		
4.		
5.		
6.