IN THE CASE OF:	

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080002739 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his 18 August 2007 Article 15 be set aside and restoration of his rank/grade of staff sergeant (SSG)/E-6. 

2.  The applicant states that his rights were violated because the Government never considered his set aside request even though he submitted it in a timely manner as outlined by paragraph 3-28 of Army Regulation (AR) 27-10 (Military Justice). 

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  Memorandum, dated 6 October 2007, Request Setting Aside and Restoration.

	b.  Memorandum, dated 30 June 2007, Witness List for an Article 15 Hearing.

	c.  Personal Financial Statement. 

	d.  Six letters of support, dated on miscellaneous dates, from various military and civilian personnel.

	e.  Copies of Awards and Decorations, Badges, Certificates, and Academic Evaluation Reports.  

	f.  Exchange of emails, dated on miscellaneous dates in 2007 and 2008 with the applicant‘s military trial defense counsel.

	g.  Orders 237-186, dated 7 July 2006, Orders to Active Duty; Orders        215-633, dated 3 August 2006, Promotion Orders to SSG/E-6; and Orders     298-0097, dated 25 October 2007, Release from Active Duty.

	h.  DD Form 214 (Certificate of Release from Active Duty), dated 18 November 2007, and DD Form 215 (Correction to the D Form 214), dated 28 March 2006. 

	i.  DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 3 January 2007. 

	j.  DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 5 July 2007. 

	k.  Three DA Forms 2823 (Sworn Statement), dated 16 June 2007 and 18 June 2007.

	l.  DA Form 4856 (Developmental Counseling Form), dated 18 June 2007.

CONSIDERATION OF EVIDENCE:

1.  With prior service in the U.S. Air Force (USAF), the applicant’s records show he enlisted in the Arizona Army National Guard (AZARNG) for a period of 3 years on 21 January 1999.  He held military occupational specialty (MOS) 95B (Military Police) at the time.  He also executed a series of extensions and/or reenlistments in the AZARNG and was initially assigned to the 855th Military Police Company, Phoenix, Arizona.  He was promoted to sergeant (SGT)/E-5 on 20 January 2002 and to SSG/E-6 on 3 August 2006.

2.  On 24 March 2005, the applicant was notified that as a result of a receipt of a Central Clearing Facility Report, it was discovered that his security clearance was either denied or revoked, and as such, he was no longer qualified in MOS 95B (now known as 31B).  He was subsequently awarded MOS 21F (Crane Operator).

3.  On 1 August 2006, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 26 October 2006 to 18 November 2007.  He was assigned to the 259th Engineer Company (Construction Support), 734th Engineer Battalion.  He was honorably released from active duty on 18 November 2007.
4.  The applicant’s awards and decorations include, the Army Achievement Medal (4th Award), the Air Force Good Conduct Medal, the National Defense Service Medal (2nd Award), the Global War on Terrorism Service Medal, the Iraq Campaign Medal, the Army Service Ribbon, the Overseas Service Ribbon, the Armed Forces Reserve Medal with “M” Device, the Air Force Training Ribbon, the Combat Action Badge, and the Driver and Mechanic Badge with Driver-W Bar. 

5.  On or around 2 October 2006, an investigation was initiated against the applicant upon notification by an officer of the AZARNG Office of the Inspector General who reported that he received a complaint regarding an allegation made by L____, the applicant’s wife, that her husband committed the offense of bigamy.  Preliminary investigation revealed that the applicant married L_____ on 18 October 2005, while he was still married to M_______.  Furthermore, L_____, a former service member, stated that the applicant attended her October 2005 promotion ceremony, while at Fort Carson, Colorado, wearing sergeant major’s rank and represented himself as a sergeant major.  

6.  On 2 October 2006, the military police obtained a copy of the applicant’s Department of Defense (DOD) Employee Interactive Data System (DEIDS) report which reflected that M_______ was the current spouse.  However, a review of L_____’s DEIDS report reflected the applicant’s name, with a different social security number, but the same date of birth.  The investigation established the following:

	a.  the applicant committed the offense of bigamy when he married L_____ while he was still married to M_______;

	b.  the applicant committed the offense of forgery and fraudulent practices when he altered and presented a marriage license he knew to be false;

	c.  the applicant committed the offense of improper wear of a uniform of the Armed Forces and Public Health Service when he attended a promotion ceremony of L_____, wore sergeant major’s rank and presented himself as a sergeant major;

	d.  the applicant committed the offense of conspiracy when he conspired to submit a forged marriage license to the Defense Finance and Accounting Service (DFAS) to collect Basic Allowance for Housing (BAH) at the “With Dependent” rate; and

	e.  the applicant and L_____ committed the offense of fraud against the U.S. Government when the applicant provided L_____ with a false marriage license to submit to DFAS to collect BAH at the “With Dependent” rate.

7.  On 5 July 2007, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for living in a bigamous relationship, having married M_______ on 7 October 2001, he then, while still married to M_______, married L_____ on 18 October 2005 and continued to live in a bigamous relationship maintaining two wives; and for being derelict in the performance of his duties, in that he failed to properly supervise the clearing of a .50 caliber Machinegun, on or about 15 June 2007.  His punishment consisted of reduction to SGT/E-5, 45 days of extra duty, and forfeiture of one half-month pay for 2 months (suspended for 6 months).  The imposing commander failed to indicate whether the Article 15 was to be filed in the restricted section or the performance section of the applicant's OMPF.

8.  On 19 July 2007, the applicant appealed his punishment and submitted additional matters.  However, after a Judge Advocate General determined, on 11 July 2007, that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed, the applicant’s appeal was denied by the Commanding General, 13th Support Command, on 12 July 2007.

9.  The applicant's Article 15, to date, has not been filed in his OMPF.

10.  The applicant submitted a memorandum, dated 6 October 2007, addressed through his immediate company commander, to the Commander, Area Support Group, in which he requested his Article 15 be wholly set aside and his E-6 grade be restored.  In his memorandum, the applicant stated that the Article 15 was defective on its face because of the following reasons:

	a.  although he was in a Title 10 status when the Article 15 was administered, he was not at the time of his offense.  His bigamy violation occurred on 18 October 2005, prior to entering on active duty (1 August 2006);

	b.  there was no dereliction of duties because he was following procedure laid out by his company and followed by his battalion commander; and

	c.  the imposing commander failed to indicate whether his Article 15 should be filed in the performance section or the restricted section of his Official Military Personnel File (OMPF) and now his Article 15 is filed on the performance section which would indefinitely affect his military career.

11.  An advisory opinion was obtained on 27 March 2008 in the processing of this case.  The Chief Personnel Division, National Guard Bureau, Arlington, Virginia, recommended disapproval of the applicant’s request to set aside his Article 15.  The Chief stated that the applicant failed to demonstrate a clear injustice as required by AR 15-185.  The Chief stated that:

	a.  according to the applicant’s application to the ABCMR, the 259th Engineer Company imposed Article 15 punishment against him on 5 July 2007 while stationed in Iraq.  The Article 15 was based on the two charges of living in a bigamous relationship in violation of Article 134, UCMJ and dereliction of duty in violation of Article 92, UCMJ.  Presumably, a hearing was held (though block 4 on DA Form 2627 was not completed) and the Corps Support Group (CSG) Commander imposed 45 days of extra duty, reduction to E-5, and forfeiture of pay.  The applicant appealed and the next higher authority denied the appeal after consulting with command legal counsel on 12 July 2007;

	b.  the applicant claimed he submitted his request to set aside the Article 15 on 6 October 2007 thru his company commander to the commander 213th Area Support Group (ASG).  Therein, he cited an Article 15 dated 18 August 2006.  Within the request, he claimed the Article 134 charge was defective and claimed there was no evidence associated with the Article 92 charge:

		(1)  the applicant claimed he suffered from a clear injustice thus, satisfying the requirements of AR 27-10, paragraph 3-28.  Specifically, he claimed the bigamy charge was unlawful as he married a second woman while in a Title 32 National Guard status, not during his Title 10 active duty service.  He claimed the facts of the Article 15 did not support the elements of Article 134, bigamy;

		(2)  the applicant based his second claim of clear injustice on a perceived lack of evidence related to the dereliction of duty charge.  He claimed the imposing commander disregarded evidence provided by others in his unit.  Thus, he claims, the proceedings were not fair or impartial; and

		(3)  the applicant claimed the command did not correctly process the Article 15 paperwork.  Specifically, he cited the command’s failure to designate a location for filing the Article 15.  In fact, the command did not complete block 5, but the ABCMR can address this error without setting aside the entire Article 15. 

	c.  Although the applicant claimed he submitted a request to set aside the Article 15, he never received a response from the 213th ASG:

		(1)  a string of emails demonstrated confusion regarding the jurisdiction of his request and who acted upon it.  There is no record documenting whether an appropriate command acted on his request to set aside the Article 15.  Certainly, the changing, multi-layered chain of command of the applicant’s AZARNG unit added to the confusion.  First, the applicant’s AZARNG unit was assigned to a U.S Army Reserve (USAR) command (164th CSG) that issued the Article 15.  Second, a Pennsylvania Army National Guard (PAARNG) unit (the 213th ASG) replaced the 164th CSG.  Finally, the applicant returned to the United States and the AZARNG; 

		(2)  ultimately, the applicant communicated with his defense counsel and stated, “I have made several attempts to determine if my unit still have [sic] it with no success.  They will not talk to me about it….what if anything can I do from this point?”  His defense attorney directed him to the ABCMR;

		(3)  the Chief’s office attempted to contact several individuals potentially involved in the applicant’s Article 15.  Among others, the Chief spoke to the imposing commander’s former command offices, the 213th ASG, and judge advocates (including one officer whose name appeared on the Article 15).  The 213th ASG indicated the applicant’s file contained a charge sheet, but no evidence of a request to set aside punishment.  Moreover, another unit member stated that the Article 15 was sent back with his unit with no action and the applicant never appealed the Article 15.  Other attempts to contact potential witnesses to the procedures were equally unfruitful as several individuals returned to civilian status and were otherwise unavailable; and

		(4)  thus, the applicant believes his “rights were violated because the government never considered [his] set aside request even though [he] submitted it in a timely manner” in accordance with AR 27-10, paragraph 3-38.

	d.   the applicant’s Article 15 and punishment are administratively correct and the ABCMR should not disturb the results.  Paragraph 3-43 of AR 27-10, states “absent compelling evidence to the contrary, a properly completed, facially valid DA Form 2627 will not be removed from a Soldier’s record by the ABCMR.”  Thus, the basis for his application is without merit.  Moreover, although a command makes the final decision regarding a request to set aside, the Chief opined that the applicant’s application is without legal merit.  In light of the charges and evidence of bigamy and dereliction of duty, actions taken by his command were legal, appropriate, and within the scope of its authority and discretion.  Each aspect is discussed more fully below.

		(1)  this particular case illustrates the challenges associated with personnel and disciplinary actions in an often-changing command environment.  As noted, it appears that the applicant’s unit fell under the command of USAR 
and Active Component units.  After the 164th CSG redeployed, it was replaced by the 213th ASG, a PAARNG unit.  Nevertheless, the nature of the command structure does not affect the validity of the Article 15; and

		(2)  the ABCMR reviews Article 15 cases with the presumption of administrative regularity.  Moreover, the applicant retains the burden of proof to demonstrate error or injustice by a preponderance of the evidence.  The applicant failed to sustain this burden;

	e.  according to paragraph 3-28(a) of AR 27-10, approval of a request to set aside and restoration results in the punishment being “set aside and any rights, privileges, or property affected by the portion of the punishment set aside restored.”  The set aside may be full or partial.  Importantly, the basis for the request:

“is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  ‘Clear injustice’ means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of a clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.”

	f.  the hurdle, as provided in paragraph 3-28(a), to demonstrate a clear injustice is significant.  Nothing in the applicant’s request to set aside and restoration sheds new light or evidence on his case.  Nothing in his request exculpates him or illustrates any other serious flaw in the proceedings that deprived him of his right to due process.  Additionally, the statements of support provided by him merely mitigated the offenses.  Finally, the Army provided the applicant with a defense attorney and the right to trial by court-martial.  In light of the charges and evidence of bigamy and dereliction of duty, the actions taken by his command were legal, appropriate, and within the scope of the command’s authority and discretion.  Given options, he pursued his case in the Article 15, non-judicial forum and, therefore, must accept the correctly administered punishment.  Despite the due process, his attack constitutes a collateral attack where he attempts to re-argue his case before the ABCMR.  Absent some clear injustice or deprivation of due process he received, the applicant should not be able to use the ABCMR to replace the command’s judgment or decision making process;

	g.  additionally, minor errors on the DA Form 2627 (as filed in his application) do not warrant set aside.  Paragraph 3-28(c) of AR 27-10 states “in cases where administrative errors result in incorrect entries on DA Form 2627 or 2627-1, the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.”  The two errors in question are found in blocks 4 and 5.  

		(1)  Block 4 does not indicate whether the applicant had an open or closed hearing.  Nevertheless, as demonstrated in block 3, he requested a closed hearing.  Additionally, the commander clearly listed the punishment in block 4 presumably after considering “all matters presented in defense, mitigation, and/or extenuation.”  The letters of support, however, were merely mitigating in nature.  The support attested to his performance as a Soldier, not the negligence associated with the weapons discharge, and the financial impact caused by a reduction in rank from the bigamy charge.  The letters did not provide a defense to his actions; and

		(2)  Block 5 of the DA Form 2627 does not indicate the filing preference for the Article 15 - restricted or performance section.  However, as noted in the applicant’s 6 October 2007 request, the Article 15 was filed in his performance section of the OMPF.  Alternatively, the command possessed the option to file it in the restricted section if he had no prior Article 15 in the restricted section.  AZARNG indicated the applicant has no prior Article 15s in his OMPF.  Unfortunately, there is no evidence to determine with certainty where the commander intended to file the Article 15.

	h.  aside from two minor errors, the DA Form 2627 is facially valid and the ABCMR should maintain the presumption of regularity.  The actions taken by his command related to his misconduct were legal, appropriate, and within the scope of the command’s authority and discretion.  Nothing presented by the applicant in his request to set aside punishment demonstrated a clear injustice and nothing presented was unavailable at the time the command imposed the Article 15.  Therefore, the applicant did not suffer from any manifest or clear injustice requiring reversal or modification by the ABCMR.

11.  The applicant was provided with a copy of the advisory opinion on 30 March 2008; however, he did not concur and submitted a rebuttal statement on
27 August 2008.  In his rebuttal statement, the applicant stated:

	a.  he suffered a clear injustice because the bigamy charge was unlawful as he entered into marriage with a second wife while under Title 32 ARNG status , not during his Title 10 active duty service.  At the time of the Article 15, he was annulled from the second wife.  Thus the facts of the Article 15 did not support the elements of bigamy;

	b.  the facts and the submitted statements do not support the charge of dereliction of duty and that he followed standard operating procedure; and

	c.  he submitted a request to set aside the Article 15 through his unit commander on 6 October 2007. However, the chain of command opted not to submit the set aside request and thus deprived him of the opportunity to have his case reviewed which resulted in a clear injustice.  

12.  AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM).  It states, in pertinent part, that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

13.  Paragraph 3-6 of this regulation addresses the filing of an Article 15.  It states, in pertinent part, that a commander’s decision whether to file a record of NJP on the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.  If a record of NJP has been designated for filing in a Soldier’s restricted section, the Soldier’s OMPF will be reviewed to determine if the restricted section 
contains a previous record of NJP. In those cases in which a previous DA Form 2627 that has not been wholly set aside has been filed in the restricted section and in which prior to that punishment the Soldier was in the rank of SGT or higher, the present DA Form 2627 will be filed in the performance section.  The filing should be recorded on the present DA Form 2627 in block 11. The Soldier concerned will be informed of the filing of the DA Form 2627 in the performance section.

14.  Paragraph 3-7 of this regulation prescribes the authority to impose NJP.  It states, in pertinent part, that unless otherwise specified in this regulation, or if authority to impose NJP has been limited or withheld by a superior commander, any commander is authorized to exercise the disciplinary powers conferred by Article 15.  The term commander, as used here, means a commissioned or warrant officer who, by virtue of that officer’s grade and assignment, exercises primary command authority over a military organization or prescribed territorial area that under pertinent official directives is recognized as a command.  The term imposing commander refers to the commander or other officer who actually imposes the NJP commands include companies, troops, and batteries; numbered units and detachments; missions; Army elements of unified commands and joint task forces; Service schools; and area commands.  Commands also include, in general, any other organization of the kind mentioned above, for example, a provisional unit designated under AR 220–5, the commander of which is the one looked to by superior authority as the individual chiefly responsible for maintaining discipline in that organization.  Thus, an infantry company, whether or not separate or detached, is considered to be a command.  However, an infantry platoon that is part of a company and is not separate or detached is not considered to be a command.  Although a commissioned or warrant officer exercising command is usually designated as the commander, this position may be designated by various other titles having the same official connotation; for example, commandant, chief of mission, or superintendent.  Whether an officer is a commander is determined by the duties he or she performs, not necessarily by the title of the position occupied.  A multi-service commander or officer in charge, to whose command members of the Army are assigned or attached, may impose NJP upon such Soldiers.  A multi-service commander or officer in charge, alternatively, may designate one or more Army units and will for each such Army unit designate an Army commissioned or warrant officer as commanding officer for the administration of discipline under the UCMJ, Article 15.  A multi-service commander or officer in charge, when imposing NJP upon a military member of his or her command, will apply the provisions of this regulation.



15.  Unless such authority is limited or withheld by superior competent authority, a commander may impose punishment under Article 15 on commissioned officers, warrant officers, and other military personnel of that commander’s command, except cadets of the U.S. Military Academy (USMA).  For the purpose of Article 15, military personnel are considered to be “of the command” of a commander if they are assigned to an organization commanded by that commander; or affiliated with the command (by attachment, detail, or otherwise) under conditions, either expressed or implied, that indicate that the commander of the unit to which affiliated to exercise administrative or disciplinary authority over them.  Under similar circumstances, a commander may be assigned territorial command responsibility so that all or certain military personnel in the area will be considered to be of the command for the purpose of Article 15.  To determine if an individual is of the command of a particular commanding officer, refer first to those written or oral orders or directives that affect the status of the individual.  If orders or directives do not expressly confer authority to administer NJP to the commander of the unit with which the Soldier is affiliated or present (as when, for example, they contain no provision attaching the Soldier “for disciplinary purposes”), consider all attendant circumstances, such as the phraseology used in the orders; where the Soldier slept, ate, was paid, performed duty; the duration of the status; and other similar factors.  If orders or directives include such terms as “attached for administration of military justice,” or simply “attached for administration,” the individual so attached will be considered to be of the command of the commander of the unit of attachment for the purpose of Article 15.

16.  Whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.  However, commanders are encouraged to consult with their NCOs on the appropriate type, duration, and limits of punishment to be imposed.  Additionally, as NCOs are often in the best position to observe a Soldier undergoing punishment and evaluate daily performance and attitude, their views on clemency should be given careful consideration.  The grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander.  For the purposes of this regulation, the imposing commander or any subordinate commander has “promotion authority” within the meaning of Article 15 if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade.  When a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced is the date the punishment of reduction was imposed. If the reduction is suspended either on or after the punishment was imposed, or is set aside or mitigated to forfeiture, the offender’s date of rank in the grade held 

before the punishment was imposed remains unchanged.  If a suspension of the reduction is vacated, the offender’s date of rank in the grade to which reduced as a result of the vacation action is the date the punishment was originally imposed, regardless of the date the punishment was suspended or vacated.

17.  Paragraph 3-28 of this regulation describes the setting side and restorations. This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. NJP is “wholly set aside” when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15. 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 that 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.  Clear injustice does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.  In cases where administrative error results in incorrect entries on DA Form 2627 or DA Form 2627-1 the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment, the commander will record the basis for this action according to notes 11 and 12, DA Form 2627; notes 9 and 10, DA Form 2627-1; or DA Form 2627-2.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action.

18.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by selected agencies such as the Army Board for Correction of Military Records (ABCMR). 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his rights were violated because the Government never considered his set aside request even though he submitted it in a timely manner as outlined by regulatory guidance and the supporting argument and evidence submitted were carefully considered.  However, there is insufficient evidence to support granting the requested relief.  

2.  The evidence of record confirms that the commander administering the Article 15 proceedings determined the applicant committed the offense in question during a closed Article 15 hearing after considering all the evidence submitted by him.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing.  

3.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  Furthermore, the applicant’s case has already been adjudicated through the Army’s legal system and the applicant was provided with a defense attorney, the right to trial by court-martial, and afforded the opportunity to appeal his punishment through the proper channels.  Here, the evidence submitted by the applicant is not sufficient to change the determination of guilt made by the commander. 

4.  Contrary to the applicant's assertion, bigamy is not an offense that occurs only when a person who is already married marries another.  It is a continuous offense, meaning that Article 134 of the UCMJ is violated for as long as the bigamous relationship exists.  Since the applicant was still married to two women when he entered Title 10 statute, he was properly charged and found guilty of this offense during his Article 15 hearing. 

5.  The evidence of record shows that the applicant’s DA Form 2627 contains administrative errors, as follows:

	a.  Block 4 does not indicate if on the day punishment was imposed, the hearing was open or closed.  However, having requested his hearing to be closed, it is very likely that the imposing commander conducted a closed hearing, but administratively forgot to mark the corresponding block.  By regulation, the 
appropriate remedy generally is an administrative correction of the form and not setting aside of the punishment.  Therefore, the “Closed” block in Block 4 of the DA Form 2127 should be checked; and

	b.  Block 5 does not indicate if the Article 15 should be filed in the performance section or the Restricted section of the OMPF.  It is noted that: 

		(1)  a commander’s decision whether to file a record of NJP on the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander considers the Soldier’s age, grade, total service, recent performance and past misconduct.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section; and

		(2)  not only did the applicant commit two serious offenses in his capacity as an NCO, one of which was in a combat environment, thus setting a very poor example for himself, his Soldiers, and the entire NCO Corps, he continues to argue that his punishment should be lessened (set aside) and his rank should be restored.  He clearly refuses to take responsibility for his actions, and as such, should not be allowed to hide his misconduct in the restricted portion of the OMPF.  By regulation, the appropriate remedy generally is an administrative correction of the form and not setting aside of the punishment. 

6.  With respect to the applicant’s arguments:

	a.  the evidence of record shows that the applicant was investigated by military authorities and was determined to have committed the offense of bigamy, while a member of the Armed Forces of the United States and in his capacity as a noncommissioned officer (NCO).  He was also derelict in the performance of his duties in that he negligently failed, again as an NCO, to supervise the cleaning of a Machinegun in a combat environment;

	b.  on 23 June 2007, the 164th CSG Commander notified the applicant that she was considering whether he (the applicant) should be punished under Article 15 for bigamy and dereliction in the performance of his duties.  It appears that the applicant was given reasonable time to consult with counsel to decide whether or not to demand trial by court-martial;
	c.  on 5 July 2007, having been afforded the opportunity to consult with counsel, the applicant stated his decision by placing his initials in the appropriate box to not demand trial by court- martial.  He further requested a closed hearing and stated that a person to speak on his behalf was requested, and that matters in defense, mitigation, and/or extenuation would be presented in person; 

	d.  on 5 July 2007, the imposing commander, after what appears to be a closed hearing, was convinced beyond a reasonable doubt that the applicant committed the offense(s).  After consulting with her senior enlisted advisor (SEA) on the appropriate type, durations, and limits of punishment to be imposed, the imposing commander exercised her authority to impose punishment;

	e.  the applicant appealed his punishment on 10 July 2007.  His appeal was reviewed by the command Staff Judge Advocate who determined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disproportionate to the offense committed.  The next superior authority, a General Officer (GO), denied the applicant’s appeal on 12 July 2007; and

	f.  nevertheless, even if the applicant did submit a request for setting aside, by regulation, 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.  The applicant failed to provide any new evidence to show clear injustice.  He simply provided his awards, decorations, academic evaluation reports, and his statement alleging adverse affects on his retention or promotion potential, all of which were considered during his Article 15, and none of which constitutes a basis to support the setting aside of punishment.

7.  The applicant's Article 15 did not indicate whether it should be filed in the restricted or the performance section of his OMPF, which presumably explains why this document is not currently filed on his record.  Although it is unfavorable that this is an administrative oversight subject to correction, it is not a correction that the ABCMR can make, as a matter of policy.  To direct filing of the Article 15 in either section of his OMPF would disadvantage the applicant in making him worse off from when he applied to this Board for relief.  However, it does not affect the validity of the Article 15 or the applicant's punishment. 

8.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  Therefore, he is not entitled to relief in this case. 


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X___  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.



      _________X_____________
               CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080002739



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ABCMR Record of Proceedings (cont)                                         AR20080002739



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