2.  The applicant requests that the nonjudicial punishment (NJP) under Article 15, UCMJ that he received for shoplifting be removed from his record. 

3.  He states that during the Article 15 proceeding he was not allowed to be in the room when the only witnesses against him were questioned, and that this was a violation of the UCMJ and Army Regulation 27-10.  Additionally, the commander who initiated the Article 15 proceeding was not the commander who heard the evidence and decided upon the punishment.  He asks how he can possibly refute allegations made by his accusers when he is not in the room to hear the charges.  

4.  In support of his application he submitted statements from his first sergeant and the battalion command sergeant major, both of whom verify that the applicant was not present when his accusers spoke against him.

5.  At the time the applicant submitted his application he was serving on active duty as a sergeant first class (E-7) at Fort Polk, Louisiana.  

6.  On 19 September 1995 the applicant’s battalion commander informed him that he was considering initiating NJP against him for stealing, on or about 4 August 1995, two cordless phones, valued at approximately $246.00, from the post exchange, in violation of Article 121, UCMJ.  On 4 October 1995 the applicant made known his desire not to demand trial by court-martial, but he did request an open hearing and a person to speak on his behalf.   

7.  A synopsis of the supporting statements submitted with the application indicates that, the brigade commander called the applicant and his chain of command into his office, read the charges, asked the applicant for his version of what happened and upon completion of his explanation, excused the applicant.  The chain of command remained in the office while post exchange security personnel and the post exchange manager were interviewed by the brigade commander and a video tape of the incident was viewed.  Thereafter, the post exchange personnel were excused and the applicant was called back into the office, whereupon his commander told him, in the presence of his chain of command, that he (the commander) was convinced he had committed the offense.  

8.  On 5 October 1995 the brigade commander imposed punishment against the applicant under Article 15, UCMJ, which consisted of a forfeiture of $1,031.00 per month for
2 months, extra duty for 30 days and 30 days restriction (suspended).  The DA Form 2627 (Record of Proceedings under Article 15, UCMJ) was directed for filing in the performance fiche of the applicant’s records.

9.  The applicant appealed the punishment, but his appeal was denied.  In his appeal he made the same argument he makes in his application to this Board and asserted his innocence of the offense, as well.  The local staff judge advocate (SJA), having considered the appeal, indicated that the proceedings were conducted in accordance with law and regulation, and the punishment was neither unjust nor disproportionate to the offense committed.  

10.  During the processing of this case an opinion was obtained by the Office of the Deputy Chief of Staff for Personnel, DA Suitability Evaluation Board (DASEB) from the Total Army Personnel Command SJA.  The PERSCOM SJA was of the opinion was that the Article 15 proceeding was fatally defective, in that the applicant should have been permitted to be present during the questioning of the two witnesses against him.    

11.  The PERSCOM SJA stated that there is no explicit authority which states that the subject of an Article 15 proceeding has the right to be present during the questioning of witnesses; however, such a right is clearly inferred in the language of the Manual for Courts-Martial and Army Regulation 27-10.  Moreover, fundamental due process dictates that soldiers have the right to be present to hear the evidence against them in order to prepare a proper defense.  

12.  In this case, the PERSCOM SJA further opined, the applicant was never in a position to present a proper defense because he was excluded from the hearing when critical evidence against him was taken.  This action by the imposing commander violated the clear, though not explicit, right to be present during the questioning of witnesses, and therefore violated the applicant’s due process to a fair hearing.  

13.  The PERSCOM SJA recommended that the record of proceedings of the NJP be removed from his records.  The DASEB concurred with this recommendation.  

14.  Army Regulation 27-10 states that a soldier has the right to present his case, except in rare circumstances, in the presence of the imposing commander; to call witnesses; to request that he be accompanied by a spokesperson; to request an open hearing, and to examine the available evidence.  Appendix B, paragraph B-2k(2), states that an “open hearing” means that the proceedings are open to the public.

CONCLUSIONS:

1.  In trial by courts-martial the accused is afforded certain protected rights that do not attach to nonjudicial proceedings.  Also in courts-martial, the rules of evidence are strictly applied.  They are not so strictly applied during nonjudicial proceedings, where the commander need only be convinced to his own satisfaction that the accused committed the charged offense.    

2.  In this case, while the applicant’s commander was convinced by the evidence presented by the witnesses against the applicant that he had committed the offense, his failure to allow the applicant to be present during the questioning of the witnesses deprived the applicant of the opportunity to present a proper defense and to offer evidence in mitigation.  

3.  The right of an individual to face his accusers is so fundamental to due process that to deprive one of that right is inherently unjust, so much so that the PERSCOM SJA has opined, in this case, that the Article 15 proceeding was fatally defective.   

4.  Also, the applicant requested an “open” hearing but in fact he, himself, was excluded from the hearing at the most critical juncture.    
5.  Under the circumstances the question of whether the applicant actually committed the offense is moot and irrelevant.  

6.  In view of the foregoing and in the interests of justice, the applicant’s records should be corrected as recommended below.  

RECOMMENDATION:

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

	a.  by removal of the record of nonjudicial punishment under Article 15, UCMJ (DA Form 2627), initiated on 19 September 1995 from the official military personnel file of the individual concerned; and 

	b.  by restoring to him all rights, privileges, and property of which he was deprived as the result of imposition of nonjudicial punishment on 5 October 1995. 

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

		                           
		        CHAIRPERSON