IN THE CASE OF:	

		BOARD DATE:	  4 June 2009

		DOCKET NUMBER:  AR20090004736 


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 the findings and sentence set forth in the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 17 February 2009, be dismissed, the document removed from his Official Military Personnel File (OMPF), his rank be reinstated, and remittance of the pay he forfeited as a result on the nonjudicial punishment.

2.  The applicant states, in effect, the battalion commander imposed nonjudicial punishment under Article 15, UCMJ; however, he does not believe the evidence supported the findings and there was insufficient evidence to prove guilt beyond a reasonable doubt, as provided for in Army Regulation 27-10 (Military Justice). The applicant adds that during his Article 15 hearing, evidence was provided to the battalion commander which negated his guilt.

     a.  The applicant states that certain administrative requirements must be met in order for a Soldier to attend Expert Field Medical Badge (EFMB) testing and, in his case, these requirements were not even initiated.  He adds that in order to attend the EFMB test, a Soldier must receive training prior to the EFMB test and also a written recommendation from their command.  He adds that he did not receive the training or written notification from his command and states, "I did not have a reasonable belief that I was required to attend this training."  The applicant also states that his noncommissioned officers (NCO) were aware of the requirements and made no effort to ensure he was enrolled in the class.

     b.  The applicant states he was accused of deceiving Major S_________ on Thursday, 10 July 2008, when asked, "if I went to PT [Physical Training] on Wednesday?"  The applicant states "[h]e questioned me on why I was not at the range at 0700 [hours] and I told him that I was going to be there between 0800 and 0830 [hours] because that is what I was told by my supervisor CPT [Captain] D____-S______."  The applicant adds that he did not deceive his commander and offers two witness statements that confirm he was present at PT on the day in question.

3.  The applicant provides a self-authored statement, dated 19 March 2009; Headquarters, Special Troops Battalion, XVIII Airborne Corps, Fort Bragg, NC, Memorandum For Record, dated 11 March 2009, subject:  [Applicant's Highest Rank and Name] Attendance To Physical Fitness Training; Headquarters and Headquarters Company, XVIII Airborne Corps, Fort Bragg, NC, Memorandum For Record, dated 11 March 2009, subject:  [Applicant's Highest Rank and Name] Attendance To Physical Fitness Training; 5-pages extracted from Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, memorandum, dated 8 September 2008, subject:  Memorandum of Instruction (MOI) for North Atlantic Regional Medical Command (NARMC) / XVIII Airborne Corps, Expert Field Medical Badge (EFMB) Testing; 2-pages extracted from Army Medical Department Center and School (AMEDDC&S) Pamphlet 350-10; and DA Form 2627, dated 17 February 2009.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the U.S. Army Reserve on 20 May 2000 for a period of 8 years.  He then enlisted in the Regular Army (RA) and entered active duty on 5 April 2001.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 91W (Health Care Specialist).  The applicant continued to serve on active duty in the RA, his primary MOS was redesignated as MOS 68W (Health Care Specialist), and he was promoted to the grade of staff sergeant (SSG)/pay grade E-6 with a date of rank of 1 June 2007.

2.  The applicant's military personnel records contain a DA Form 2166-8 (NCO Evaluation Report) covering the period 9 November 2007 through 8 November 2008.  Part II (Authentication) shows the applicant’s Rater was Master Sergeant (MSG) Karen C. D_____; his Senior Rater was CPT Amelia D____-S______; and his Reviewer was Major (MAJ) James T. S_________.  Part III (Duty Description), block f (Counseling Dates), in pertinent part, shows the applicant was counseled on 11 July 2008.

3.  In support of his application, the applicant provides the following documents.

     a.  Headquarters, Special Troops Battalion, XVIII Airborne Corps, Fort Bragg, NC, Memorandum For Record, dated 11 March 2009, subject:  [Applicant's Highest Rank and Name] Attendance To Physical Fitness Training, that shows Sergeant First Class (SFC) Samuel N. M_______, Battalion Operations/S-3, documented he witnessed that the applicant was at Physical Fitness Training on 9 July 2008 from 0630 to 0745 hours and that accountability was taken by the noncommissioned officer in charge (NCOIC) of the section.

     b.  Headquarters and Headquarters Company, XVIII Airborne Corps, Fort Bragg, NC, Memorandum For Record, dated 11 March 2009, subject:  [Applicant's Highest Rank and Name] Attendance To Physical Fitness Training, that shows Staff Sergeant (SSG) Styves J___, Maintenance Supervisor, documented he witnessed that the applicant was at Physical Fitness Training on 9 July 2008 from 0630 to 0745 hours, that accountability was taken by the NCOIC of the section, and that the physical event was conducted on that day by the NCOIC of the section and Battalion Operations/S-3 NCO.

     c.  Pages 1 - 4 & page 32 (of 33 pages) extracted from Headquarters,
XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC, memorandum, dated
8 September 2008, subject:  MOI for NARMC / XVIII Airborne Corps, EFMB Testing.  The applicant highlights specific portions of the MOI, as follows.

         (1)  Paragraph 5 (Concept), subparagraph a, in pertinent part, "NARMC Operations will receive candidate applications starting 1 July 08.  No applications will be accepted after 28 August 08.  Point of Contact (POC) is MSG G____ at 202-782-#### or 202-782-####."

         (2)  Paragraph 5, subparagraph b, in pertinent part, "It is the Unit commander's responsibility to conduct EFMB training and preparation in advance of EFMB Testing."

         (3)  Paragraph 6 (Eligibility for Candidates), subparagraph e, “For qualified personnel to attend the test period, a Commander's Recommendation Memorandum prepared IAW [In Accordance With] Annex I."

         (4)  Paragraph 6, subparagraph f, "Request must be submitted to EFMB Operations Center addressed as follows:  Commander, NARMC ACSOPS, and ATTN:  MSG G____, NARMC Bldg. 1 Rm. D404, Washington DC  20307-5001 or FAX to Comm. (202) 782-#### or DSN:  662-#### not later than 28 August 08.  The CPR Card, APFT and Weapons qualification must be valid thru
4 October 2008.  NARMC OPS does not have resources to qualify soldiers on any of these requirements at Fort Bragg, NC."

         (5)  Page 32 that appears to be a Footnote page and shows, in pertinent part, "***Candidate recommendations will not be accepted after 28 Aug 08 ***Certified Copy of DA Form 705 (APFT), date of testing must be between
04 May 2008 and 20 Sep 2008***DA Form 5790-R (Record Firing Score Card), date of testing must be between 04 Oct 2007 and 20 Sept 2008***CPR (AHA) Card, must not expire prior to 04 October 2008."

     d.  Pages 1 - 4 & page 32 (of 33 pages) extracted from AMEDDC&S Pamphlet 350-10.  The applicant highlights specific portions of the pamphlet, as follows.

         (1)  Chapter 2 (Administrative Requirements), paragraph 2-2 (Eligibility), subparagraph b, “Candidates must (1) volunteer for EFMB testing; (2) be recommended by their unit commander; (3) be physically prepared to cope with the rigorous demands of the EFMB test and trained in the prevention of heat-related injuries; and (4) qualify as marksman or higher with their assigned weapon within 1 year of the test-end date.”

         (2)  Chapter 2, paragraph 2-4, subparagraph h, in pertinent part, “Unit commanders.  (1) Recommend only those candidates who volunteer for EFMB testing and meet the eligibility requirements in paragraph 2-2.”

     e.  DA Form 2627, dated 17 February 2009, that shows on 21 November 2008, the Commander, Special Troops Battalion, XVIII Airborne Corps, Fort Bragg, NC, notified the applicant of his intent to impose nonjudicial punishment upon him for, on or about 21 September 2008, without authority, failing to go at the time prescribed to his appointed place of duty, to wit:  0800 Expert Field Medical Badge training, this in violation of Article 86, UCMJ; and for, on or about 10 July 2008, with intent to deceive, make to MAJ James T. S_________, an official statement, to wit: “I am going to the range between 0800 and 0830 because that was the time that CPT D____-S______ informed me to go.” or something to that affect, which statement was false in that CPT D____-S______ told the applicant to “show up between 0800-0830 because [the applicant] told her on 8 July 2008 that [he does] PT with the Company on Wednesday, otherwise, the expected time to conduct accountability of the range is 0700”; this in violation of Article 107, UCMJ.

         (1)  On 5 February 2009, the applicant placed his signature on the
DA Form 2627 indicating he did not demand trial by court-martial; he requested an open hearing; a person to speak in his behalf was not requested; and matters in defense, mitigation, and/or extenuation were not presented.  Following an open hearing where all matters presented in defense, mitigation, and/or extenuation were considered; the commander placed his signature on the document directing the applicant's reduction to sergeant (E-5), forfeiture of $1,202.00 pay per month for two months, and 45 days extra duty.  The commander directed the DA Form 2627 be filed in the restricted portion of the applicant’s OMPF and also advised the applicant of his right to appeal to the Commander, 108th Air Defense Artillery Brigade, within 5 calendar days.

         (2)  The applicant placed his signature in Item 7 and also indicated with his initials that he appealed the Article 15 and submitted additional matters.  Item
11 (Allied Documents and/or Comments) contains the entries, "DA Form 4856 (2) [Developmental Counseling Form], ERB [Enlisted Record Brief], and DA Form 2823 [Sworn Statement], dated 22 Sep[tember 20]08.”

         (3)  Item 8 of the DA Form 2627 shows that on 11 February 2009 a commissioned officer of the Judge Advocate General Corps considered the appeal and it was his opinion that “[t]he proceedings were conducted under relevant laws and requirements and the punishment imposed was appropriate under the circumstances.”

         (4)  Item 9 of the DA Form 2627 shows that on 17 February 2009, after consideration of all matters presented in appeal, the brigade commander denied the applicant’s appeal.

4.  The Manual for Courts-Martial, RCM 916(c), in pertinent part, provides that "a reasonable doubt is a doubt on reason and common sense.  A reasonable doubt is not mere conjecture; it is an honest, conscientious doubt suggested by the evidence, or lack of it, in the case.  An absolute or mathematical certainty is not required.  The rule as to reasonable doubt extends to every element of the offense.  It is not necessary that each particular fact advanced by the prosecution which is not an element be proved beyond a reasonable doubt.”

5.  Army Regulation 27-10, Chapter 3 (Nonjudicial Punishment), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.

   a.  Paragraph 3-3 (Relationship of nonjudicial punishment to nonpunitive measures), in pertinent part, provides that nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.   Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies.

   b.  Paragraph 3-18 (Notification and explanation of rights), subparagraph j (Evidence), provides that the imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, the commander reasonably believes to be relevant to the offense.  Subparagraph l (Imposition of punishment) provides that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).  If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier.  The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed.  (Before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense(s).)

   c.  Paragraph 3-43 (Transfer or removal of records of nonjudicial punishment), subparagraph e, states that Army Regulation 15-185 (Army Board for Correction of Military Records) contains policy and procedures for applying to the Army Board for Correction of Military Records (ABCMR) and for the correction of military records by the Secretary of the Army.  Requests should be sent to the ABCMR to correct an error or remove an injustice only after other available means of administrative appeal have been exhausted.  This includes requests under this paragraph.  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.

6.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or no longer used documents) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

7.  Paragraph 2-3 (Composition of the OMPF) of Army Regulation 600-8-104 provides, in pertinent part, that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command (for enlisted Soldiers, formerly designated as Commander, U.S. Army Enlisted Records and Evaluation Center) or the Headquarters, Department of the Army selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

8.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

9.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 of this regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the findings and sentence set forth in the DA Form 2627, dated 17 February 2009, should be dismissed, the document removed from his OMPF, his rank reinstated, and remittance of the pay he forfeited as a result on the nonjudicial punishment because evidence was provided during the Article 15 hearing to the battalion commander which negated his guilt, he does not believe the evidence supported the findings, and there was insufficient evidence to prove guilt beyond a reasonable doubt.

2.  The applicant’s contentions that certain administrative requirements were required to be met in order for him to attend the EFMB test, that these requirements were not initiated, and that his NCOs were aware of the requirements and made no effort to ensure he was enrolled in the class were carefully considered.  The evidence of record shows the deadline (i.e., suspense date) for submission of the administrative requirements to NARMC Operations for Soldiers to attend the EFMB test was 28 August 2008.  It is noted that the applicant was serving in the grade of SSG (E-6), he had more than 7 years of active duty service at the time, and he was aware of the administrative requirements for the EFMB test.  Thus, it is reasonable to conclude that the applicant’s superiors (i.e., supervisory NCOs) were also aware of these administrative requirements.  In addition, based on the applicant’s grade and years of service, it is reasonable to conclude he was aware that he could meet with appropriate officials in his chain of supervision/command to discuss matters relating to the timely submission of the required administrative documents, if this, in fact, was an issue.  However, whether or not this actually was an issue cannot be determined from the available evidence.  Therefore, the applicant provides insufficient evidence to support his claim that the administrative requirements for him to attend the EFMB test were not met in his case.

3.  The applicant’s contentions that in order to attend the EFMB test a Soldier must receive training prior to the EFMB test, that he did not receive the training, and he did not have a reasonable belief that he was required to attend this training were also carefully considered.  The evidence of record shows the applicant had a conversation with his senior rater/commander on 8 July 2008 (Tuesday) and that this discussion pertained to the applicant’s attendance at Company PT and also his reporting to the range on 9 July 2008 (Wednesday).  Thus, the evidence of record shows the command was conducting training that was directly related to preparing Soldiers for the EFMB test (i.e., Company PT and weapons familiarization/qualification) and, in turn, also for the applicant in advance of the EFMB test.  Therefore, the evidence of record refutes the applicant’s claim he did not receive training prior to the EFMB test and that he did not have a reasonable belief that he was required to attend this training.
 
4.  The evidence of record (i.e., in the form of two witness statements that the applicant provides) shows the applicant attended Company PT on Wednesday,
9 July 2008, from 0630 to 0745 hours.  However, the applicant’s attendance at Company PT on 9 July 2008 is not in question.  At issue, in essence, is the integrity/completeness of the applicant’s responses to his senior rater/ commander, and particularly to his indorser, when asked by his indorser about the instructions he was given by his senior rater/commander regarding his responsibility to report to Company PT and the range.  After a careful review of the evidence of record, it is concluded that the applicant has not submitted compelling evidence to disprove the facially valid DA Form 2627.  Therefore, in view of all of the foregoing, it is concluded that the DA Form 2627 in the applicant's OMPF is administratively correct, the findings and sentence were appropriate for the circumstances, and the document is properly filed.

5.  By regulation, in order to remove a DA Form 2627 from the OMPF, there must be compelling evidence to support its removal.  The applicant failed to submit evidence of a compelling nature to show that the DA Form 2627 filed in the restricted section of his OMPF is in error.  Therefore, the DA Form 2627, dated 19 February 2009, is deemed to be properly filed and should not be removed from the applicant's OMPF.

6.  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)                                         AR20090004736



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ABCMR Record of Proceedings (cont)                                         AR20090004736



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