IN THE CASE OF:	  

		BOARD DATE:	  9 October 2008

		DOCKET NUMBER:  AR20080006528 


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, in effect, removal of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) from his Official Military Personnel File (OMPF).  

2.  The applicant states, in effect, that there were manipulation of personnel rules governing assignments of Soldiers under a FLAG (Suspension of Favorable Personnel Actions); Soldiers pending compassionate reassignments; Soldiers facing punishment under Article 15; and delaying the promotion of Soldiers on a semi-centralized promotion list.  He claims these violations were committed in order to assign him to Fort Hood, Texas, for the specific purpose of putting him in a unit where the conditions were against him, which made it easier to convict him based on a poorly conducted investigation.  He states his rights as a Soldier were violated and he is requesting that the DA Form 2627 be removed from his OMPF and that he be allowed to be promoted to staff sergeant (SSG) with his original eligibility date of 1 February 2007.

3.  The applicant provides a self-authored memorandum with the 18 documents identified as enclosures to this memorandum in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that as of the date of this application, he was still serving on active duty; in the rank of specialist (SPC), at Fort Detrick, Maryland.

2.  The applicant’s record shows that following a tour in Korea, while he was enroute to an assignment at Fort Hood, Texas, the applicant was attached to Headquarters, Command Battalion, Fort Meade, Maryland, in order to process a compassionate reassignment request, from 11 November 2006 to 29 November 2006.

3.  On 20 December 2006, the applicant's request for a promotion reevaluation was approved by the Deputy Chief, Military Personnel Division, United States Army Garrison (USAG), Fort Meade.  A Promotion Point Worksheet (DA Form 3355) and Enlisted Distribution Assignment System (EDAS) printout was included with this approval memorandum.  The DA Form 3355 contains an entry that shows the applicant earned 300 points on his last Army Physical Fitness Test (APFT), which was taken on 1 October 2006.  It also contains an entry indicating he scored 40 hits during his last weapons qualification, which was completed on 2 October 2006.  The EDAS printout shows that the applicant’s promotions points were changed from 763 points to 798 points based on this recalculation of points, and the applicant was informed he would compete for promotion to SSG with 798 promotion points effective 1 February 2007.

4.  USAG Fort Meade Order Number 019-103, dated 19 January 2006, authorized the extension of the applicant's attachment to Fort Meade through
18 January 2007.

5.  On 16 January 2007, while attached to Fort Meade, the applicant’s commander initiated a non-transferable FLAG action against the applicant for adverse actions, and on 19 January 2007, a new transferrable FLAG was issued for the punishment phase of the adverse action.  

6.  An EDAS report, dated 23 January 2007, shows that based on his request, the applicant was granted an extension of his attachment to Fort Meade through 10 March 2007, for the purpose of settling an estate; however, this action was not implemented prior to the applicant reporting to Fort Hood, his gaining command, on 25 January 2007.

7.  On 29 January 2007, the applicant’s commander appointed a fact finding officer to investigate the applicant’s actions with regard to documents he submitted in support of the recalculation of his promotion points.  

8.  On 2 February 2007, the Center Sergeant Major, Enlisted Records and Evaluation Center, notified the applicant that he had been selected for promotion to SSG.


9.  On 15 February 2007, the fact finding officer determined the applicant had intentionally submitted false documents that resulted in an increase in his promotion points, after the Training Noncommissioned Officer (NCO) of the applicant's former unit in Korea had confirmed the applicant did not take the APFT and did not qualify with his weapon prior to departing that command.  The Training NCO from Korea also confirmed that the applicant's final APFT score, which was from a test conducted on 12 June 2006, was 253 points, and that his weapons qualification score from qualification on 31 May 2006, was 38 hits.

10.  In April 2007, while he was serving as a sergeant (SGT) at Fort Hood, Texas, the applicant was notified by his commander, a colonel (COL), that he was considering whether the applicant should be punished under Article 15 of the UCMJ for turning in a false Weapons Qualification Scorecard and APFT Scorecard with the intent to deceive.  

11.  On 18 April 2007, the applicant elected not to demand a trial by 
court-martial and chose for the matter to be handled by his commander at a closed hearing.

12.  On 25 April 2007, the applicant’s commander imposed punishment against the applicant which included a reduction to SPC.  The applicant elected to appeal the punishment and to submit additional matters for consideration. 

13.  On 30 April 2007, a legal representative of the Office of the Staff Judge Advocate (SJA) considered the applicant’s appeal and opined that the proceedings were conducted in accordance with the law and regulations.  Counsel further opined that the punishment imposed was not unjust nor disproportionate to the offense committed.

14.  On 2 May 2007, the appellate authority, a major general, considered all matters presented and denied the applicant’s appeal.

15.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-7 contains guidance on who may impose NJP and it states, in pertinent part, that any commander is authorized to exercise the disciplinary powers conferred by Article 15.  The term commander, as used in this chapter, 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 nonjudicial punishment. 
16.  Paragraph 3-8 of the same regulation contains guidance on persons on whom NJP may be imposed.  It states, in pertinent part, that NJP may be imposed on military personnel of a commander’s command 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 a 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).  

17.  Section V (Section V Suspension, Vacation, Mitigation, Remission, and Setting Aside (para 6, part V, MCM) of the Military Justice regulation contains guidance on setting aside punishment.  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 that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the NJP imposed on him was improper because he was attached to another unit was carefully considered.  However, by regulation, individuals who are assigned to one unit, but attached or detailed to another, have two chains of command, both of which have Article 15 authority.  A commander does not lose that authority until a Soldier ceases to be within the commander’s command.  The fact that the applicant was attached to another unit prior to inprocessing his gaining command did not sever the command relationship with the commanders of his assigned unit.

2.  The evidence of record further confirms that the commander who imposed the NJP action in question was in fact the applicant’s assigned commander. In addition, the applicant was afforded legal counsel prior to electing to have his case considered at closed a hearing before his commander.  There is no indication that he or his legal counsel questioned the authority of his commander to conduct the Article 15 proceedings at the time.  The evidence further confirms that the Article 15 process in this case was accomplished in accordance with the applicable law and regulation.  After consulting with legal counsel and electing not to demand a trial by court-martial, the applicant chose to have his case disposed of through Article 15 proceedings at a closed hearing with his commander.  Subsequent to the hearing, at which the applicant presented matters of defense, mitigation, and/or extenuation, NJP action was imposed for the applicant’s violation of Article 121 of the UCMJ.  
3.  The record further shows that the applicant appealed the NJP action and after legal authorities determined that it was legally sufficient, the appellate authority denied this appeal.  Absent evidence to support the applicant’s assertion that the imposing commander lacked the command authority to conduct the Article 15 proceedings, there is an insufficient evidentiary basis to set-aside the punishment imposed.  

4.  Based on the forgoing, there is insufficient evidence to support the applicant’s claim that the DA Form 2627 should be removed from his OMPF and that he should be promoted to SSG based on an erroneous FLAG action.  The applicant’s unit commander appropriately initiated a FLAG action against him for adverse action, which prevented his promotion to SSG at the time.  His assigned commander at Fort Hood appropriately investigated the facts surrounding the reevaluation of the applicant's promotion points to establish the applicant’s innocence or guilt of the alleged adverse action, and given the facts finally confirmed the applicant falsified facts on his promotion reevaluation request, he was appropriately punished under Article 15 of the UCMJ by his assigned commander.  The Article 15 processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the Article 15 process. 

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080006528



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ABCMR Record of Proceedings (cont)                                         AR20080006528



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