MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 May 2000
	DOCKET NUMBER:   AR1999034687

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. John P. Infante		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:  In effect, that she be restored to the rank and pay grade of sergeant/E-5 (SGT).  

APPLICANT STATES:  In effect, that she unjustly received nonjudical punishment (NJP), under the provisions of Article 5 of the Mississippi Code of Military Justice, which included her being reduced one grade and her receiving a letter of reprimand.  She claims to have been punished for what she said on her private telephone to the wife of a fellow member of her unit in the Army National Guard, who at the time was being wiretapped by her husband.  Her supervisor at the time was mailed this tape recording, which she claims is a violation of her constitutional rights.  The applicant’s expanded statement is enclosed.

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

On 11 August 1985, she enlisted in the Army National Guard (ARNG) of the State of Mississippi.  She successfully completed her initial active duty for training on 11 March 1985 and was awarded military occupational specialty (MOS) 71D (Legal Clerk).  

On 1 April 1986, she began an Active Guard/Reserve (AGR) tour serving in MOS 71L as a clerk typist.  She has continued to serve in an AGR status and remains in that status at this time.  She attained the highest grade she has held in the ARNG, sergeant/E-5, on 13 November 1991.

On 3 January 1996, while serving as the unit clerk in Company C of the 890th Engineer Battalion, Columbia, Mississippi, the applicant was notified by her unit commander of the intent to impose NJP, under the provisions of Article 5 of the Mississippi Code of Military Justice.  The NJP imposition was based on her releasing information on a soldier in her unit to an unauthorized person.  The applicant was advised of her rights in connection with the NJP action and completed her election of rights.  In her election of rights the applicant waived her right to military counsel and her right to be represented by civilian counsel of her own choice at her own expense.  

On 16 January 1996, after electing not to demand trial by court-martial, the applicant accepted the NJP.  Her punishment consisted of a reduction of one grade; a letter of reprimand; and a fine of $75.00.  She elected to appeal the punishment and submitted a statement in her own defense.  In addition, the applicant requested that her case be reviewed by an administrative reduction board and that military counsel be appointed to represent her before this board. 

On 16 January 1996, as a result of the NJP imposed, a letter of reprimand was issued to the applicant by her unit commander.  This letter admonished the applicant for her activities concerning her safeguarding of personal information and military records.  The commander stated, in effect, that the applicant violated the responsibility and trust placed in her as the unit clerk, to care for, maintain, and safeguard the Military Personnel Records Jacket and related records of the soldiers in her unit.  

On 22 February 1996, although not required by regulation or law, the applicant’s battalion commander approved her request for an administrative reduction board and appointed military counsel to represent the applicant.  On 24 March 1996, an administrative reduction board convened to consider the applicant’s appeal.  This board found that the applicant did, without authority, attempt to commit fraud against the government of the United States and the Mississippi ARNG and further that she had failed to prove to the board that the punishment imposed for her offense was excessive.  As a result of the board findings, on 1 April 1996, the applicant was reduced to the rank of specialist/E-4.  

On 4 April 1996, the appropriate authority approved the findings of the administrative reduction board which supported the unit commander’s imposition of NJP.  He stated, in effect, that after considering the findings of the administrative reduction board, the written appeal of the applicant, and the supporting evidence submitted with the appeal, that he supported the imposition NJP by the unit commander, thereby denying the applicant’s appeal.

The Mississippi Code is the official code of the public statute laws of the State of Mississippi that are enacted by the Legislature.  Title 33 covers the Military Affairs of the State and chapter 13 contains the Mississippi Code of Military Justice.  Article 5 (Nonjudicial Punishment) of the code provides the legal authority for commanders of the ARNG to impose NJP on members of their commands.  The code does contain a provision which allows any member of the state military forces the right to demand trial by court-martial before the imposition of NJP under this section of the law. 

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.  After carefully considering the evidence of record and the independent evidence submitted by the applicant, the Board found that the NJP action taken against the applicant was properly accomplished in accordance with the applicable provisions of the Mississippi Code of Military Justice.  Therefore, the Board found there was no basis on which to grant the relief requested.  

2.  The evidence of record shows, prior to the imposition of NJP, the applicant was afforded the right to demand trial by court-martial, which she declined.  In addition, she completed an election of rights in which she declined her right to counsel in connection with the NJP action.  Thus, the Board was satisfied that all the requirements of the law were met and the rights of the applicant were fully protected throughout the NJP process.  

3.  Further, the Board noted that the chain of command allowed the applicant the opportunity to have her reduction reviewed by an administrative reduction board with representation by legal counsel, even though this was not required by law or regulation.  In the opinion of the Board, this consideration demonstrates the chain of command’s commitment to ensuring fairness and equity to the applicant and attests to propriety of the entire NJP process in this case. 

4.  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 the aforementioned requirement.

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

___sk___  ___jev___  ___jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR1999034687	
SUFFIX		
RECON		
DATE BOARDED	2000/05/31	
TYPE OF DISCHARGE	N/A 	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  224	112.0200	
2.		
3.		
4.		
5.		
6.