IN THE CASE OF:	  

		BOARD DATE:	  13 August 2008

		DOCKET NUMBER:  AR20080006592 


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, that a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 25 March 2008, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, the unethical behavior of the Staff Judge Advocate (SJA) in his case resulted in his being denied due process.  The applicant claims that the SJA was unethical in acting as both a witness against him and as the command advisor on his case. 

3.  The applicant provides the following documents in support of his application:  Self-Authored Memorandum, dated 11 April 2008; Article 15 Appeal Packet; and DA Form 2627. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he enlisted in the Regular Army and entered active duty on 21 November 2002, and was trained in and awarded military occupational specialty (MOS) 27D (Paralegal Specialist).  


2.  On 13 March 2008, while he was serving as a sergeant (SGT) at West Point, New York, the applicant was notified that his Garrison Commander was considering whether he should be punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for the following offenses:  three specifications of failing to go at the time prescribed to his appointed place of duty on or about 
4 January, 16 January, and 6 February 2008; for three specifications of failing to obey lawful orders from a senior noncommissioned officer (NCO) on or about 
29 January 2008, 31 January 2008, and 1 March 2008; and for failing to obey the lawful order of a commissioned officer on or about 22 February 2008. 

3.  On 25 March 2008, the applicant elected not to demand a trial by 
court-martial, and instead chose for the matter to be handled by his garrison commander at a closed hearing.  He also elected not to request a person to speak on his behalf and indicated he would present matters in defense, mitigation, and/or extenuation in person.  Subsequent to the hearing, the applicant’s garrison commander imposed the following punishment on the applicant:  reduction to specialist (SPC); forfeiture of $1018.00 per month for
2 months; and 45 days of restriction and extra duty.  The garrison commander directed the DA Form 2627 be filed in the performance portion of the applicant's OMPF.  

4.  On 25 March 2008, the applicant appealed the punishment and submitted additional matters, and a Judge Advocate General (JAG) attorney (not the SJA in question) considered the applicant's appeal and opined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportional to the offense committed.  

5.  On 8 April 2008, the appellate authority (Superintendent of the United States Military Academy (USMA) at West Point, a Lieutenant General), after considering all matters presented in appeal, denied the applicant's appeal.  The SJA in question did provide advice to the appellate authority commensurate with her responsibilities as the command SJA; however, the record shows she addressed the applicant's concerns about her impartiality and offered to transfer the case to another office to provide legal advice.  The appellate authority determined this was neither warranted or necessary.   

6.  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 3-16d (4) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  


7.  Paragraph 3-18 of the military justice regulation 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 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 an open hearing, and to examine available evidence.  

8.  Paragraph 3-28 of the military justice regulation 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. 

9.  Paragraph 3-34 of the military justice regulation provides guidance on action by the judge advocate (JA).  It states, in pertinent part, that the JA rendering the advice should be the JA providing legal advice to the officer taking action on the appeal.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was denied due process in the Article 15 process as a result of unethical behavior on the part of the SJA was carefully considered.  However, there is insufficient evidence to support this claim.   

2.  The evidence of record confirms the applicant waived his right to a trial by court-martial, opted for a closed hearing, and requested the opportunity to present matters in rebuttal at the hearing.  After considering the available evidence, the applicant's garrison commander found him guilty of the alleged misconduct.  The Article 15 was reviewed by a JAG representative, not the SJA in question, who opined the proceedings had been conducted in accordance with the law and regulation, and that the punishment imposed was not unjust or disproportionate to the offense committed.  

3.  Further, other than his assertions, the applicant has failed to provide any evidence that the SJA was biased or otherwise provided incorrect or misleading advice to the commander or the appellate authority by virtue of her knowledge of the applicant's pattern of misconduct.  

4.  The Article 15 was also reviewed by the appellate authority, the Superintendent of the USMA, who after reviewing the entire record and all matters and documents submitted on appeal, denied the applicant's appeal.  The SJA in question did provide the appellate authority legal advice commensurate with her responsibilities as the command JA.  However, it is clear the appellate authority considered the applicant's argument regarding the SJA's involvement along with all other matters presented in appeal by the applicant before rendering his final decision on the appeal.  

5.  The evidence of record confirms the applicant's Article 15 proceedings were 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 process.  The applicant was granted and took advantage of all appellate rights, and there is no indication that the SJA in question took any inappropriate actions that resulted in the applicant being denied due process. 

6.  The garrison commander's decision was appropriately reviewed through the appellate process.  The evidence of record and the independent evidence submitted by the applicant fails to constitute new clear and convincing evidence that he did not commit the alleged misconduct for which he received the 
Article 15.  Therefore, the regulatory burden of proof necessary to support removal of the applicant's Article 15 has not been satisfied in this case.  Thus, there is an insufficient evidentiary basis to support granting the requested relief. 

7.  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)                                         AR20080006592



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ABCMR Record of Proceedings (cont)                                         AR20080006592


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