RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        28 November 2006
      DOCKET NUMBER:  AR20060012510


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John T. Meixell               |     |Chairperson          |
|     |Ms. Susan A. Powers               |     |Member               |
|     |Mr. Dennis J. Phillips            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that a Record of Proceedings under
Article 15, Uniform Code of Military Justice (UCMJ), DA Form 2627, be
removed from his Official Military Personnel File (OMPF) and restoration of
his rank and pay.

2.  The applicant states, in effect, that the DA Form 2627, dated 26
January 2006, that is filed in his OMPF is the third DA Form 2627 that was
administered by his chain-of-command to punish him for an offense that he
did not commit.  The applicant also states, in effect, this constituted
reprisal for his having raised the issue that a previous DA Form 2627,
dated 18 November 2005, had been altered by someone in the chain-of-command
and is a violation of his rights under Title 10, U.S. Code, section
1034(b)(1)(B)(iv).

3.  The applicant states, in effect, that he completed a travel voucher
with the assistance of a fellow noncommissioned officer (NCO) in his unit,
Staff Sergeant (SSG) P_____.  He states, in effect, that he followed the
NCO's advice that the normal procedure was to claim reimbursement for the
number of days reflected on the orders despite the fact that they had
returned a day earlier.  This resulted in an additional $70.00 being
claimed.  The applicant states that he submitted the travel voucher to a
more senior NCO in his chain of command for review.  The senior NCO then
questioned both the applicant and SSG P_____ concerning the date they
returned.  The applicant states that SSG P_____ lied to the senior NCO;
however, the applicant states he was truthful and informed the senior NCO
that he had returned a day earlier, but filled out the form based on the
guidance provided by SSG P_____.

4.  The applicant states, in effect, that an Article 15 was administered to
him on 18 November 2005 (first Article 15); however, he was later informed
that the charges were not legally sufficient because he was not read his
rights under Article 31 prior to being questioned about his travel voucher
and had not presented the document to an approving official.  The applicant
states the punishment indicated that his reduction to E-4 was suspended
until February 2006 (i.e., "[r]eduction to E4 and forfeiture of $1,030.00,
for 2 months, suspended until 01 Feb 06") and that he raised this issue
with his chain-of-command.  The applicant also states that the senior NCO
then presented him with a second
DA Form 2627, dated 18 November 2005, that was a replication of the first
DA Form 2627, except the punishment was altered to read "[r]eduction to
Specialist (E4); and forfeiture of $1,030.00 per month for 2 months,
suspended, to be automatically remitted if not vacated before 01 Feb 06"
(second Article 15). The applicant states this alteration was made to avoid
the argument that the reduction was suspended, along with the forfeiture.
5.  The applicant states, in effect, that on 31 January 2006 he received a
third Article 15, which did not include a violation of Article 91, UCMJ,
but only included a violation of Article 132, UCMJ.  In addition, the
punishment imposed was "[r]eduction to Specialist (E-4); forfeiture of
$967.00, for one month; extra duty for 45 days; and restriction for 45
days, suspended, to be automatically remitted if not vacated on or before
31 July 06."  At this point, the applicant states, in effect, he
reluctantly accepted the Article 15 (third Article 15) without appeal
because he thought he might receive another Article 15 that contained even
harsher punishment.

6.  The applicant offers additional background concerning his temporary
duty travel, his reliance on the advice of another NCO in completing his
travel voucher, and submission of the travel voucher to a senior NCO for
review so that he could identify any mistakes prior to the applicant
submitting the document to the approving authority.  The applicant explains
that the senior NCO questioned both the applicant and the other NCO about
the additional $70.00 that was claimed on their travel vouchers.
Subsequent to the senior NCO's inquiry, the applicant received a counseling
statement and approximately one month later both he and the other NCO were
summoned to the commander's office and each received an Article 15.  The
applicant states, in effect, that the Judge Advocate (JA) officer serving
at the Trial Defense Services (TDS) reviewed  the first Article 15 and
advised the applicant of errors that it contained, including the fact that
his reduction in rank was suspended, therefore, he was entitled to continue
wearing the rank of sergeant (E-5), rather than specialist (E-4).  After
the applicant questioned members in his chain-of-command regarding certain
entries on the first Article 15 and the suspension of the reduction in
rank, he states that the second Article 15 was issued.  He also states that
the JA officer from TDS prepared a memorandum of appeal to set aside the
second Article 15 based on the fact that the senior NCO had not advised the
applicant of his rights under Article 31, UCMJ.

7.  The applicant states, in effect, that he honestly answered all
questions he was asked by the senior NCO about his travel voucher and also
in a sworn statement, which was then used against him for the Article 15s.
The applicant maintains that he never intended to defraud the Government,
but was merely trying to conduct himself as he had been guided by another
NCO.  He adds that he signed the first Article 15 because he was told he
could not go to the TDS for legal advice with an unsigned copy of the
Article 15.  He also asserts he was given a copy of the second Article 15
that was a replication of the first Article 15 that already had his
signature on it; however, the punishment had been revised.  The applicant
adds that after trying to seek the assistance of the Inspector General, he
received the third Article 15, the JA officer at the TDS then informed him,
"There is nothing I can do for you anymore.  I just can't help you
anymore." and the applicant was subsequently transferred to another unit on
the installation.

8.  The applicant concludes by stating he remained honest about his actions
and in his answers to the senior NCO.  He adds, in effect, had the senior
NCO told him to correct his mistakes on the travel voucher, he would not
have received an Article 15, he would have attended the January 2006 E-6
promotion board, and based on his promotion points and the cut-off score,
probably would have been promoted to staff sergeant (E-6) in April or May
2006.  Consequently, he seeks relief from this Board to rectify the
injustice he has endured.

9.  The applicant provides a 13-page, self-authored statement; DA Form 4856
(Developmental Counseling Form), dated 26 October 2005; two versions of a
DA Form 2627, both dated 22 November 2005 (first and second Article 15);
Headquarters, U.S. Army Trial Defense Service, Fort Campbell, Kentucky,
unsigned memorandum, dated 19 December 2005; a DA Form 2627, dated
9 February 2006 (third Article 15); and a 1-page extract from the Internet
of U.S. Military Nonjudicial Punishment (Article 15), dated 12 February
2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military service records show that he enlisted in the
Regular Army on 23 February 2001 for a period of 6 years.  Upon completion
of basic combat training and advanced individual training, the applicant
was awarded military occupational specialty (MOS) 68B (Aircraft Power Plant
Repairer).  On
1 May 2003, the applicant was promoted to the grade of rank of sergeant/pay
grade E-5.  He served in support of Operation Iraqi Freedom from 12
December 2004 to 11 March 2005 and was awarded the Army Commendation Medal
for meritorious achievement.  At the time of his application, the applicant
was serving in the rank of specialist/pay grade E-4.

2.  The applicant's military service records contain a DA Form 2627, dated
26 January 2006 (the third Article 15), that shows in Item 1 (I am
considering whether you should be punished under Article 15, UCMJ, for the
following misconduct:) "In that you did, at Fort Campbell, Kentucky, on or
about 26 Oct 05, by preparing a travel voucher, make a claim against the
United States in the amount of $589.00 for reimbursement of temporary duty,
which claim was false and fraudulent in the amount of $70.00, and was known
by you to be false.  This is in violation of Article 132, UCMJ."  The DA
Form 2627 shows that it was administered by the commander to the applicant
on 26 January 2006 at
1315 hours (emphasis added).  Item 4 of the DA Form 2627 shows the
following punishment was imposed:  "Reduction to Specialist (E-4);
forfeiture of $967.00, for one month; extra duty for 45 days; and
restriction for 45 days, suspended, to be automatically remitted if not
vacated on or before 31 July 06 (emphasis added)."  Item 5 of the DA Form
shows that the commander directed that the original DA Form 2627 be filed
in the performance section of the applicant's OMPF (emphasis added).  Item
7 of the DA Form 2627 shows that the applicant indicated, "I do not
appeal."  This document also shows that the commander signed and dated the
document on 31 January 2006 and the applicant signed and dated the document
on 9 February 2006.  A review of the applicant's OMPF shows that this
document is filed in both the performance and the restricted sections of
his OMPF (emphasis added).

3.  The applicant's military service records contain a copy of
Headquarters,
1st Battalion, 160th Special Operations Aviation Regiment (Airborne),
United States Army Special Operations Command, Fort Campbell, Kentucky,
Memorandum For Record, dated 10 January 2006, subject:  SGT [Applicant's
Name and Social Security Number], Article 15.  This document shows, in
pertinent part, that the lieutenant colonel serving as the commander stated
"I dismiss without prejudice the charges originally imposed on 22 November
2005, as indicated on the attached DA Form 2627.  All punishment previously
imposed is set aside; new charges are pending at this time."  The attached
document is the amended second Article 15.  A review of the applicant's
OMPF shows that this document is filed in the restricted section of his
OMPF, as an allied document to the DA Form 2627 discussed in paragraph 2,
above.

4.  The applicant's military service records contain a DA Form 2627, dated
18 November 2005 (the second Article 15), that shows in Item 1 (I am
considering whether you should be punished under Article 15, UCMJ, for the
following misconduct:) "In that you, on or about 26 Oct 05, having received
a lawful order from SFC O____, a superior non-commissioned officer, then
known by you to be a superior non-commissioned officer, to explain how you
came up with your travel voucher reimbursement total, an order which it was
your duty to obey, did at Fort Campbell, Kentucky on or about 26 Oct 05,
willfully disobey the same.  This is violation of Article 91, UCMJ."  This
item also contains the entry "(See Continuation Sheet)."  The "Continuation
Sheet DA Form 2627" pertaining to the DA Form 2627 shows "Item 1
(continued):  In that you did, at Fort Campbell, Kentucky, on or about 26
Oct 05, by presenting a travel voucher to SFC O____, a superior non-
commissioned officer of the United States duly authorized to approve such
claim, present for approval a claim against the United States in the amount
of $589.10 for reimbursement for the use of the soldiers Government Travel
Charge Card, which claim was false and fraudulent in the amount of $70.00,
and was known by you to be false.  This is in violation of Article 132,
UCMJ."  The DA Form 2627 shows that it was administered by the commander to
the applicant on 18 November 2005 at 1100 hours (emphasis added).  Item 4
of the DA Form 2627 shows the following punishment was imposed:  "Reduction
to Specialist (E4); and forfeiture of $1,030.00 per month for 2 months,
suspended, to be automatically remitted if not vacated before 01 Feb 06
(emphasis added)."  Item 5 of the DA Form 2627 shows that the commander
directed that the original DA Form 2627 be filed in the restricted section
of the applicant's OMPF.  Item 7 of the DA Form 2627 shows that the
applicant indicated, "I do not appeal."  This document shows that both the
commander and applicant signed and dated the document on 22 November 2005.
This document further shows written across the DA Form 2627 in block
letters the following:  "VOID AS OF 10 JAN 06.  A review of the applicant's
OMPF shows that this document is filed in the restricted section of his
OMPF, as an allied document to the third Article 15 discussed in paragraph
2, above.

5.  The applicant's military service records contain a DA Form 2627, dated
18 November 2005 (the second Article 15), that shows in Item 1 (I am
considering whether you should be punished under Article 15, UCMJ, for the
following misconduct:) "In that you, on or about 26 Oct 05, having received
a lawful order from SFC O____, a superior non-commissioned officer, then
known by you to be a superior non-commissioned officer, to explain how you
came up with your travel voucher reimbursement total, an order which it was
your duty to obey, did at Fort Campbell, Kentucky on or about 26 Oct 05,
willfully disobey the same.  This is violation of Article 91, UCMJ."  This
item also contains the entry "(See Continuation Sheet)."  The "Continuation
Sheet DA Form 2627" pertaining to the DA Form 2627 shows "Item 1
(continued):  In that you did, at Fort Campbell, Kentucky, on or about 26
Oct 05, by presenting a travel voucher to SFC O____, a superior non-
commissioned officer of the United States duly authorized to approve such
claim, present for approval a claim against the United States in the amount
of $589.10 for reimbursement for the use of the soldiers Government Travel
Charge Card, which claim was false and fraudulent in the amount of $70.00,
and was known by you to be false.  This is in violation of Article 132,
UCMJ."  The DA Form 2627 shows that it was administered by the commander to
the applicant on 18 November 2005 at 1100 hours (emphasis added).  Item 4
of the DA Form 2627 shows the following punishment was imposed:  "Reduction
to Specialist (E4); and forfeiture of $1,030.00 per month for 2 months,
suspended, to be automatically remitted if not vacated before 01 Feb 06
(emphasis added)."  Item 5 of the DA Form 2627 shows that the commander
directed that the original DA Form 2627 be filed in the restricted section
of the applicant's OMPF.  Item 7 of the DA Form 2627 shows that the
applicant indicated, "I do not appeal."  This document shows that both the
commander and applicant signed and dated the document on 22 November 2005.
This document appears to be the same DA Form 2627 discussed in paragraph 4,
above, but without the block letters (i.e., voiding the document) written
across the DA Form 2627.  A review of the applicant's OMPF shows that this
document is filed in the restricted section of his OMPF, along with a copy
of Headquarters,
1/160th Special Operations Aviation Regiment (Airborne), United States Army
Special Operations Command, Fort Campbell, Kentucky, Memorandum For Record,
dated 8 November 2005, subject:  Assumption of Command.

6.  In addition to copies of the DA Forms 2627 described in paragraphs 2
and 5, above, the applicant provides a copy of a DA Form 2627, dated 18
November 2005 (the first Article 15), that shows in Item 1 (I am
considering whether you should be punished under Article 15, UCMJ, for the
following misconduct:) "In that you, on or about 26 Oct 05, having received
a lawful order from SFC O____, a superior non-commissioned officer, then
known by you to be a superior
non-commissioned officer, to explain how you came up with your travel
voucher reimbursement total, an order which it was your duty to obey, did
at Fort Campbell, Kentucky on or about 26 Oct 05, willfully disobey the
same.  This is violation of Article 91, UCMJ."  This item also contains the
entry "(See Continuation Sheet)"; however, the applicant does not provide
the Continuation Sheet with his application.  The DA Form 2627 shows that
it was administered by the commander to the applicant on 18 November 2005
at 1100 hours (emphasis added).  Item 4 of the DA Form 2627 shows the
following punishment was imposed:  "Reduction to E4 and forfeiture of
$1,030.00, for 2 months, suspended until 01 Feb 06 (emphasis added)."  Item
5 of the DA Form 2627 shows that the commander directed that the original
DA Form 2627 be filed in the restricted section of the applicant's OMPF.
Item 7 of the DA Form 2627 shows that the applicant indicated, "I do not
appeal."  This document also shows that both the commander and applicant
signed and dated the document on 22 November 2005.  A review of the
applicant's OMPF revealed that this document is not filed in his OMPF.

7.  Army Regulation 27-10 (Military Justice), paragraph 3-3 (Relationship
of nonjudicial punishment to non-punitive measures), provides that
nonjudicial punishment is imposed to correct misconduct in violation of the
UCMJ.  Such conduct may result from intentional disregard of or failure to
comply with prescribed standards of military conduct.  Non-punitive
measures usually deal with misconduct resulting from simple neglect,
forgetfulness, laziness, inattention to instructions, sloppy habits,
immaturity, difficulty in adjusting to disciplined military life, and
similar deficiencies.  These measures are primarily tools for teaching
proper standards of conduct and performance and do not constitute
punishment.  Included among non-punitive measures are denial of pass or
other privileges, counseling, administrative reduction in grade,
administrative reprimands and admonitions, extra training, bar to
reenlistment, and military occupational specialty (MOS) reclassification.
Certain commanders may administratively reduce enlisted personnel for
inefficiency and other reasons. This authority exists apart from any
authority to punish misconduct under Article 15.  These two separate and
distinct kinds of authority should not be confused.

8.  Army Regulation 27-10, paragraph 3-10 (Double punishment prohibited),
provides that when nonjudicial punishment has been imposed for an offense,
punishment may not again be imposed for the same offense under Article 15.
Once nonjudicial punishment has been imposed, it may not be increased, upon
appeal or otherwise (emphasis added).  When a commander determines that
nonjudicial punishment is appropriate for a particular service member, all
known offenses determined to be appropriate for disposition by nonjudicial
punishment and ready to be considered at that time, including all offenses
arising from a single incident or course of conduct, will ordinarily be
considered together and not made the basis for multiple punishments.  This
provision does not restrict the commander's right to prefer court-martial
charges for a non-minor offense previously punished under the provisions of
Article 15.

9  Army Regulation 27-10, paragraph 3-17 (Formal proceedings), provides
that a commander who, after a preliminary inquiry, determines that
punishment, if it should prove to be appropriate, might exceed extra duties
for 14 days, restriction for 14 days, oral reprimand or admonition, or any
combination thereof, will record all entries on a DA Form 2627.

10.  Army Regulation 27-10, paragraph 3-18 (Notification and explanation of
rights), provides that the imposing commander will ensure that the Soldier
is notified of the commander's intention to dispose of the matter under the
provisions of Article 15, UCMJ.  The Soldier will also be notified of the
maximum punishment that the commander could impose under Article 15, UCMJ.
The Soldier will be provided a copy of DA Form 2627 with Items 1 and 2
completed, including the date and signature of the imposing commander.  The
imposing commander may authorize a commissioned officer, warrant officer,
or noncommissioned officer (NCO) (i.e., sergeant first class (SFC) or
above), provided such person is senior to the Soldier being notified, to
deliver the
DA Form 2627 and inform the Soldier of the Soldier's rights. The NCO
performing the notification should ordinarily be the unit first sergeant or
the senior NCO of the command concerned.

11.  Army Regulation 27-10, paragraph 3-32 (Action by the imposing
commander or successor-in-command), provides that the imposing commander or
the successor-in-command may take any action on the appeal with respect to
the punishment that the superior authority could take.  If the imposing
commander or a successor-in-command suspends, mitigates, remits, or sets
aside any part of the punishment, this action will be recorded according to
notes 11 and 12,
DA Form 2627, or notes 9 and 10, DA Form 2627-1.  The appellant will be
advised and asked to state whether, in view of this action, the appellant
wishes to withdraw the appeal.  Unless the appeal is voluntarily withdrawn,
the appeal will be forwarded to the appropriate superior authority.  An
officer forwarding the appeal may attach any matter in rebuttal of
assertions made by the Soldier.  When the Soldier desires to appeal, the
imposing commander, or the successor-in-command, will make available to the
Soldier reasonable assistance in preparing the appeal and will promptly
forward the appeal to the appropriate superior authority.

12.  Paragraph 3-36 (Records of punishment) provides that all Article 15
actions, including notification, acknowledgement, imposition, filing
determinations, appeal, action on appeal, or any other action taken prior
to action being taken on an appeal, except summarized proceedings, will be
recorded on DA Form 2627.  The DA Form 2627 is a record of completed
actions and either the DA Form 2627 or a duplicate as defined in Military
Rules of Evidence (M.R.E.) 1001(4) may be considered for use at courts-
martial or administrative proceedings independently of any written
statements or other documentary evidence considered by an imposing
commander, a successor, or a superior authority.

13.  Paragraph 3-38 (Supplementary action) provides that any action taken
by an appropriate authority to suspend, vacate, mitigate, remit, or set
aside a punishment (except punishment imposed under summarized proceedings,
paragraph 3-16) after action has been taken on an appeal or DA Form 2627
has been distributed according to paragraph 3-37, will be recorded on a DA
Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ).

14.  Army Regulation 3-28 provides that in cases where an administrative
error results in incorrect entries on a DA Form 2627, the appropriate
remedy generally is an administrative correction of the form and not
setting aside the punishment.

15.  Army Regulation 27-10, paragraph 3-40 (Time for distribution of
initial
DA Form 2627) provides that distribution will be made according to
paragraph
3-37 after the recipient indicates in Item 7 that the recipient does not
appeal (emphasis added).  If the recipient appeals, the DA Form 2627 will
be forwarded to the superior authority and photocopied after completion of
Item 10.  Completion of this item shows that the recipient acknowledges
notification of action on the recipient's appeal.  If Item 10 cannot be
completed because the recipient is not reasonably available or due to
military exigencies, a statement signed by the imposing commander stating
that the recipient was informed in writing of the disposition of the appeal
and why it was not possible to have Item 10 completed will be placed in
Item 11 before photocopies are distributed.  If the recipient fails to
complete or sign Item 7, an explanation of the failure will be provided by
the imposing commander in Item 11 and distribution of the photocopies will
be made according to paragraph 3-37 or this paragraph, whichever is
applicable (a recipient's refusal to indicate whether or not the recipient
desires to appeal may be presumed to indicate an intention not to appeal).

16.  Title 10, U.S. Code, section 1034 (Protected communications;
prohibition of retaliatory personnel actions) provides, in pertinent part,
that no person may take (or threaten to take) an unfavorable personnel
action, or withhold (or threaten to withhold) a favorable personnel action,
as a reprisal against a member of the armed forces for making or preparing
a communication that is made (or prepared to be made) to an Inspector
General and that is made (or prepared to be made) to any person or
organization in the chain of command.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant received 3 Article 15s
for violation of the UCMJ on or about 26 October 2005.  The evidence of
record shows that the third Article 15 pertained to violation of Article
132, UCMJ, and the first and second Article 15s pertained to a violation of
Articles 91 and 132, UCMJ. The Continuation Sheet for the first Article 15
is not included in the applicant's request or his OMPF, but is presumed to
have also included the violation of Article 132, UCMJ, similar to the other
2 Article 15s.

2.  The evidence of record shows that all Article 15 actions, including
notification, acknowledgement, imposition, filing determinations, appeal,
action on appeal, or any other action taken prior to action being taken on
an appeal, except summarized proceedings, will be recorded on a DA Form
2627.  The evidence of record also shows that any action taken by an
appropriate authority to suspend, vacate, mitigate, remit, or set aside a
punishment after action has been taken on an appeal or the DA Form 2627 has
been distributed according to paragraph
3-37 (emphasis added), will be recorded on a DA Form 2627-2.

3.  The evidence of record shows that the applicant was administered the
first and second Article 15s by his commander on 18 November 2005 at 1100
hours and that both of these Article 15s were processed through to
completion, including distribution to the applicant subsequent to his
decision not to appeal the Article 15 actions.  However, the punishment on
these two DA Forms is slightly different.  Specifically, the inclusion of
punctuation (i.e., a semicolon) affects whether the applicant's reduction
to E-4 was actually automatically imposed or suspended.  In addition, the
punishment on one of these two DA Forms 2627 also includes, in pertinent
part, the phrase "…to be automatically remitted if not vacated…"  However,
aside from the applicant's claim that the first Article 15 that is phrased
in such a way as to convey that his reduction to E-4 was suspended for 2
months, it can not be definitively determined which of these two Article
15s was first administered by the commander.  However, the  third Article
15 administered on 26 January 2006, for the applicant's violation of
Article 132, UCMJ, on 26 October 2005, that is filed in both the
performance and restricted sections of the applicant's OMPF, imposed an
even harsher punishment
(i.e., adding 45 days extra duty; and 45 days restriction, suspended, to
his reduction in grade and monetary forfeiture) than the 2 DA Forms 2627,
dated
22 November 2005.  Therefore, based on the harsher punishment imposed by
the third Article 15, it is reasonable to assume that the first Article 15
imposing the suspended reduction to E-4 was administered first and the
second Article 15 imposing the actual reduction to E-4 (i.e., a harsher
punishment) was administered second.

4.  It appears the punishment on the second Article 15 was amended to
clarify that the reduction of the applicant to E-4 was not suspended.
However, this alteration of the punishment was not valid as it did not
comport with regulation and, apparently, was not served on the applicant
until the action was complete.  Therefore, the Board concludes that the
second Article 15 is null and void and should be removed from the
applicant’s OMPF.

5.  The first Article 15 was not filed in the applicant’s OMPF and is not
contained in the applicant’s official military service records.  Therefore,
the Board will not substitute the improperly amended second Article 15 with
the first Article 15.

6.  While setting aside an Article 15 to correct an administrative error is
generally not the advised course of action to correct a punishment, it is
not prohibited.  The command inartfully attempted to correct the ambiguity
on the first and second Article 15s by effectively setting them aside with
the commander’s letter.  This action, though not an encouraged practice,
properly set aside the second
Article 15 (which, as noted above, was invalid in the first place).

7.  The third Article 15, on its face, imposed a greater punishment than
the first Article 15 by imposing an unsuspended reduction to E-4, extra
duties for
45 days, and restriction for 45 days.  Additionally, the commander placed
the third Article 15 into the performance section of the applicant’s OMPF.
These punishments and the placement of the Article 15 in the performance
section of the OMPF were inappropriate.  While the applicant’s command had
the authority to set aside the first and second Article 15s, it did not
have the authority to increase the punishment initially imposed.  It
appears that the command set aside the first two Article 15s and imposed
the third Article 15 to clarify an ambiguity concerning whether the
reduction to E-4 was suspended.  However, once the first Article 15 was
complete, the applicant’s command was bound by the punishment imposed.  In
imposing punishment in the first Article 15, the applicant’s commander was
required to make the punishment clear.  As the punishment was not clear, it
must be read in the light most favorable to the applicant.  Therefore, the
applicant’s commander was bound, with the third Article 15, to impose no
more than a suspended reduction to E-4.

8.  The evidence of record shows that the third Article 15 was imposed as a
result of action under the provisions of Army Regulation 27-10, paragraph
3-32 (Action by the imposing commander or successor-in-command), dismissing
without prejudice the charges originally imposed on 22 November 2005, as
indicated on the DA Form 2627.  There is no evidence that the applicant
appealed the commander’s decision to impose the decision by the commander
finding him guilty of the offense alleged or the punishment imposed.
However, based on the discussion above, the maximum punishment that the
command could impose under the third Article 15 was a reduction to the
grade of E-4 and forfeiture of $1030.00 for two months (both suspended).
As the applicant’s record does not show any reason why these suspensions
would have been vacated, the applicant should be restored to the grade of E-
5 and be reimbursed for any amounts forfeited as a result of the Article
15.

9.  The Board notes that it does not condone the applicant's actions with
respect to the erroneous completion of his travel voucher.  The applicant's
implication that a reviewing and/or approving official should provide
guidance or advice on entries pertaining to a Soldier's actual travel
dates/itinerary is specious.  A Soldier and, in this case, a
noncommissioned officer has a personal and professional responsibility to
ensure compliance with U.S. Code and regulatory requirements, and to
conduct necessary research into the procedures governing the preparation of
an official document prior to submission to a supervisor for review or to
an approving official for processing.

10.  Notwithstanding the foregoing, the Board finds that the first two
Article 15s are void.  The second Article 15 should be removed in all
respects from the applicant’s OMPF.  Further, the applicant’s record should
be corrected to reflect the punishment imposed against the applicant was a
reduction to E-4, suspended until 1 February 2006, and a forfeiture of
$1030.00 for two months, suspended until 1 February 2006.  Further, the
third Article 15 should be moved from the performance section to the
restricted section of the applicant’s OMPF.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___JTM__  ___SAP_  __DJP __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

      a.  removing the DA Form 2627, dated 9 February 2006 (third Article
15), from the performance section and placing it in the restricted section
of the applicant’s OMPF;

      b.  correcting the DA Form 2627, dated 9 February 2006 (third Article
15) to show that the punishment imposed consisted of a reduction to E-4,
suspended until 1 February 2006, and a forfeiture of $1030.00 for two
months, suspended until 1 February 2006;

      c.  removing the DA Form 2627, dated 22 November 2005, and all
attached documents, from the restricted section of the applicant's OMPF;
and

      d.  as a result of the above, restoration of the applicant's grade of
rank
(i.e., sergeant/pay grade E-5, with a date of rank of 1 May 2003) and
payment of all pay lost that may have resulted from punishment imposed by
the DA Form 2627, dated 9 February 2006 and/or 22 November 2005.

2.  In addition, as a result of this correction, the Defense Finance and
Accounting Service shall be notified of the Board's determination and remit
payment to the applicant of all back-pay (i.e., pay and allowances, less
any withholdings and/or deductions) that may be due as a result of this
correction.

3.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that implies that
the DA Form 2627, dated
9 February 2006 (third Article 15), should not be filed in the restricted
section of the applicant's Official Military Personnel File.

4.  To ensure this decision results in no unintended harm to the individual
concerned, following completion of the administrative corrections directed
herein, the Record of Proceedings and all documents related to this appeal,
except for the DA Form 2627, dated 9 February 2006 (cited in paragraph 1a,
above), will be returned to this Board for permanent filing.  The Record of
Proceedings and associated documents, except for the DA Form 2627, dated 9
February 2006 (cited in paragraph 1a, above), will not be filed in the
individual's OMPF.




                                             John T. Meixell____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060012510                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061128                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |126.0500.0000                           |
|2.                      |126.0600.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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