RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007 
	DOCKET NUMBER:  AR20070000819 


	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.  


Ms. Catherine C. Mitrano

Director

Mrs. Victoria A. Donaldson

Analyst


The following members, a quorum, were present:


Mr. William D. Powers 

Chairperson

Mr. William Blakley

Member

Mr. Donald L. Lewy

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 removal of a DA Form 2627, Record of Proceedings, Under Article 15, Uniform Code of Military Justice (UCMJ), dated 7 January 2006, from her Official Military Personnel File (OMPF).  

2.  The applicant states that she received the Article 15 for not writing a fraudulent counseling statement on one of her Soldiers.  She continues that she was not the Soldier's noncommissioned officer when the event happened and had no knowledge or record of the event.  The applicant argues that because she did not complete the counseling statement, she received an Article 15 and maximum punishment.  The applicant concludes that she was told that the Article 15 would not be placed in her permanent record.

3.  The applicant provides a copy of the Article 15, three sworn statements, and a letter in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Records show that the applicant was honorably discharged on 31 January 2006.

2.  Records show that the applicant was punished under the provisions of Article 15 of the UCMJ for disobeying a lawful order to write a Developmental Counseling Statement on an enlisted Soldier, on or about 27 December 2005.

3.  The resultant punishment included a forfeiture of $870.00 of pay per month for 2 months, a written reprimand, and restriction for 60 days.  The commander directed filing in the performance portion of the OMPF.  

4.  The DA Form 2627 shows that the applicant was advised that she had the right to demand a trial by court-martial and the right to consult with legal counsel. She was also advised that she had 48 hours to decide what she wanted to do.

5.  The applicant acknowledged that she was afforded the opportunity to consult with counsel and placed an "X" in the box "I do not demand trial by court-martial." The applicant elected not to appeal and placed her signature and the date 
"1-7-2006" [7 January 2006] on the DA Form 2627.

6.  The applicant provides a sworn-statement, dated 2 January 2006, which essentially states that the applicant did not feel she disobeyed a direct order 
because she was not aware that it was an order.  The applicant also stated that she was not the enlisted Soldier's direct supervisor during the event that caused the request for developmental counseling and that she should not have been the one to provide such counseling.

7.  The applicant provided three additional sworn statements which essentially state the applicant's position, that she should not have been the person to provide the Soldier with the developmental counseling.

8.  The applicant's records contain a letter, dated 17 August 2006, to a United States Senator from the Chief of Staff of the Coalition Forces Land Components Command, United States Army Central Forces Command.  This official opined that the applicant disobeyed a direct order that was neither illegal nor immoral and that the charge against the applicant had merit.

9.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-18l provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  

10.  Paragraph 3-18 of Army Regulation 27-10 contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates the Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected; and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  In addition, it states that the Soldier will be informed of the right to consult with counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, to hold an open hearing, and to examine available evidence.  

11.  Paragraph 3-28 of Army Regulation 27-10 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for 
any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for removal of the Article 15, dated 7 January 2006, from her Official Military Personnel File (OMPF) was carefully considered.  

2.  Evidence clearly shows that the applicant did not follow a direct order to prepare a developmental counseling statement on an enlisted Soldier.  The applicant admits that she did not complete the counseling as directed but argues that she did not understand that she was being ordered to do so.  Additionally, the applicant contends that the enlisted Soldier was not in her chain of responsibility.  

3.  These arguments were carefully considered; however, they were not sufficient to mitigate the fact that the applicant failed to obey a lawful order.

4.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that the Article 15 was not processed in accordance with applicant laws and regulations.  

5.  Pertinent regulation states, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  There is no evidence and the applicant has not provided sufficient evidence that an injustice has occurred.  

6.  Based on the foregoing, there is no basis to grant the applicant request for removal of the Article 15 from her OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_WDP__   _WB____  _DLL____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




_William D. Powers__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
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.

2.

3.

4.

5.

6.