RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 8 May 2008
DOCKET NUMBER: AR20070013789
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.
Director
Analyst
The following members, a quorum, were present:
Chairperson
Member
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 his Article 15, dated 20 February 2005, be set aside and his rank restored.
2. The applicant states, in a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), that the incident was a total misunderstanding. The charge against him was not what happened. Private First Class (PFC) I___ had been using foul language and was out of order. She had already been reported to the first sergeant for unruly behavior. Her accusations were false and the circumstances misperceived. PFC I___s accusations spread to her barracks, which he believes led to another false allegation. He did not know the other Soldier even existed.
3. The applicant provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty), one is Member Copy 4 for the period ending 11 March 2006, the other is illegible but appears to be Member Copy 1 of the same DD Form 214; his promotion to Staff Sergeant (SSG), E-6 orders; his reduction to Sergeant (SGT), E-5 orders; an Army National Guard (ARNG) Current Annual Statement; page 1 of the Article 15; and a letter, dated 28 September 2007, from a Member of Congress to the Chief of Legislative Liaison.
CONSIDERATION OF EVIDENCE:
1. After having had prior service, the applicant enlisted in the ARNG on 17 September 1984. He was promoted to SSG, E-6 on 1 January 2004.
2. The applicant was ordered to active duty with his unit on 24 May 2004. He arrived in Iraq on 12 January 2005.
3. On 20 February 2005, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for: on or about 1 October 2004 unlawfully grabbing PFC I___ by the arm with excessive force; on or about 25 October 2004 unlawfully grabbing and shoving Specialist F___ by the shoulder with excessive force; on or about 11 February 2005 unlawfully grabbing Specialist F___ by the shoulder with excessive force; on or about 13 August 2004 orally communicating to PFC I__ certain indecent language; on or about 14 October 2004 orally communicating to SGT B___ certain indecent language; and on or about 1 October 2004 orally communicating to PFC I___ certain indecent language.
4. The applicants punishment was a written reprimand, a reduction to SGT, E-5, and a forfeiture of $500.00 pay for one month (suspended for 60 days). The applicant appealed the punishment. On 25 March 2005, his appeal was denied.
5. Item 11 (Allied Documents and/or Comments) of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ) indicates that seven DA Forms 2823 (Sworn Statement), a DA Form 5109 (Request to Superior to Exercise Article 15, UCMJ Jurisdiction), two memoranda, a written reprimand, an email, and an attachment from a chaplain were attached. These documents were not filed in his records and were not otherwise available for review.
6. The applicant departed Iraq on 31 October 2005. He was released from active duty on 31 March 2006.
7. Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice. Chapter 3 states that a commander will personally exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and determining the amount and nature of any punishment if punishment is appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant contended that the incident that led to the Article 15 was a total misunderstanding and that the charge against him was not what happened. He contended that PFC I___s accusations were false and the circumstances misperceived. He contended that PFC I___s accusations led to another false allegation from a Soldier he did not even know.
2. However, the applicant provided no evidence supporting his contentions other than his own statement. The applicant accepted the Article 15 rather than face trial by court-martial. In so doing, he put the decision of his guilt or innocence in the hands of his commander. After reviewing the evidence and the applicants rebuttal, the commander found the applicant guilty of the offense charged.
3. The non-judicial punishment proceedings were conducted in accordance with applicable law and regulations; the punishment imposed was within legal limits; and the record of proceedings (DA Form 2627) is properly on file. In the absence of extraordinary circumstances the Board is reluctant to substitute its judgment for that of the commander who was on the scene on the question of guilt and on the basis of incomplete evidence.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xxx__ __xxx___ __xxx___ 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.
XXX__
CHAIRPERSON
ABCMR Record of Proceedings (cont) AR20070013789
4
DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA 22202-4508
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