IN THE CASE OF:	  

		BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090009024 


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 nonjudicial punishment (NJP) action of 2 October 2007 be set aside and that the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) documenting this NJP action be removed from his official military personnel file (OMPF), that his rank and pay grade of staff sergeant (SSG)/E-6 be reinstated, that he receive all back pay and allowances due as a result of the reinstatement of his rank and pay grade to SSG/E-6, and that he be considered for promotion to sergeant first class (SFC)/E-7 by a Standby Advisory Board (STAB).

2.  The applicant states, in effect, that he was offered a company-grade Article 15; however, he turned it down for a trial by court-martial because he did not violate the UCMJ.  He claims that a defense attorney advised him to accept the Article 15 and contest the offenses in that arena.  He indicates that when he returned to his commander to inform him he would accept the Article 15, it was changed to a field-grade Article 15 in retribution for his initial refusal and he was additionally accused of disrespect to a senior noncommissioned officer (NCO) and failure to report to his appointed place of duty.  He claims he felt threatened by the NCO but did not disrespect him and that during the periods that he was supposedly absent from training he had taken his children to mandatory counseling.

3.  The applicant provides the following documents in support of his application: DA Forms 2627, dated 17 August 2007 and 2 October 2007; self-authored statement, dated 2 October 2007; Rebuttal for Counseling; Monthly Planner Calendar (May through July 2007); and appointment reports.

CONSIDERATION OF EVIDENCE:

1. The applicant currently remains serving on active duty as a SSG/E-6.

2.  On 17 August 2007, while serving as a SSG/E-6 at Fort Bragg, NC, the applicant was notified that his company commander was considering whether he should be punished under Article 15 (company grade) of the UCMJ for violating Article 91 of the UCMJ by being disrespectful in deportment toward an NCO then known to be his superior NCO by laughing in his face and by violating Article 86 of the UCMJ (four specifications) by failing to go to his appointed place of duty at the time prescribed on four separation occasions between 3 and 24 July 2007.

3.  On 20 August 2007, the applicant demanded a trial by court-martial.

4.  On 2 October 2007, the applicant submitted a request to receive an Article 15 proceeding in lieu of trial by court-martial for the alleged offenses of violating Articles 86 and 91 of the UCMJ.  He confirmed that prior to making the request he had consulted with his appointed counsel and had been fully advised of his rights under the UCMJ and of the elements of the offenses with which he was charged.

5.  On 2 October 2007, the applicant was notified that his battalion commander was considering whether he should be punished under Article 15 of the UCMJ for violating Article 91 of the UCMJ by being disrespectful in deportment toward an NCO then known to be a superior NCO by laughing in his face and by violating Article 86 of the UCMJ (six specifications) by failing to go to his appointed place of duty at the time prescribed on six separate occasions between 3 July 2007 and 14 August 2007.  The applicant elected not to demand a trial by court-martial and instead chose for the matter to be handled by his battalion commander at a closed hearing.

6.  On 2 October 2007, the applicant’s battalion commander, after having considered all matters presented in defense, mitigation, and/or extenuation at a closed hearing, imposed the following punishment on the applicant:  reduction to sergeant (SGT)/E-5, forfeiture of $1,161.00 per month for 2 months (suspended to be automatically remitted if not vacated before 1 April 2008), and 45 days of extra duty and restriction (both suspended, to be automatically remitted if not vacated before 1 April 2008).

7.  The battalion commander also directed the DA Form 2627 be filed in the performance portion of the applicant's OMPF.  The applicant elected not to appeal the NJP action.

8.  On 1 January 2009, the applicant was again promoted to SSG/E-6.

9.  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; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files and to 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.

10.  Paragraph 7-2 of Army Regulation 600-37 contains guidance on appeals for removal of OMPF entries.  It states, in pertinent part, the burden of proof to support removal of a document filed in the OMPF 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.  The regulation provides provisions that allow the transfer of a DA Form 2627 from the performance portion of the OMPF to the restricted portion of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.

11.  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.

12.  Paragraph 3-18 of Army Regulation 27-10 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.

13.  Paragraph 3-28 of Army Regulation 27-10 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.  It further stipulates that 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.  Additionally, the regulation indicates that normally the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

14.  Army Regulation 600-8-19 (Enlisted Promotion and Reductions), prescribes the Army's enlisted promotions and reductions policy.  Paragraph 5-43 provides guidance on enlisted STABs and states, in pertinent part, that STABs will consider records not reviewed by a regular board; that were not properly constituted because of a material error when reviewed by a regular board; and of Soldiers on whom derogatory information has been properly substantiated, which may warrant removal from a selection list.  It must be presumed that a material error in the file may have contributed to non-selection.  An error is material when, in the judgment of a mature individual familiar with selection board proceedings, a reasonable chance exists that had the error not existed, the Soldier may have been selected.  Sometimes, a long-standing error once corrected qualifies the member for reconsideration based on the criteria of several boards.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his Article 15 be set aside was carefully considered.  However, by regulation, in order to set aside NJP properly imposed there must be a determination that, under all the circumstances of the case, the punishment 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.  Although the applicant has presented his view of the facts and circumstances surrounding the events that led to the NJP action, his version of the events is not corroborated by the evidence of record.  As a result, there is no clear injustice related to the NJP action in question.

2.  The evidence of record confirms that after originally turning down the company-grade Article 15 and demanding a court-martial, the applicant brought the matter to the attention of the battalion commander who elected to handle the matter after the applicant requested that he receive an Article 15 in lieu of undergoing a trial by court-martial on 2 October 2007.  Further, the applicant added to his misconduct with two additional specifications of violations of Article 86 of the UCMJ which also justified a field-grade Article 15 versus a company-grade Article 15.  Therefore, the applicant's claim that changing the level of his Article 15 from company grade to field grade was an unjust reprisal that resulted from his originally requesting a trial by court-martial is unfounded.

3.  The evidence of record confirms the applicant was notified of the commander’s intent to handle the offense in question under the provisions of Article 15.  After being afforded the opportunity to consult with legal counsel, he elected not to demand a trial by court-martial and elected to have his case disposed of through Article 15 proceedings at a closed hearing with his battalion commander.  The record also shows that the applicant was aware he had the right to fully present his 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 at the time he made these elections.  It further shows he elected not to appeal the NJP action in question at the time it was imposed.

4.  In view of the evidence of record, it is clear the Article 15 proceeding in question was conducted in accordance with the governing law and regulation and the applicant has failed to satisfy the clear and compelling evidence regulatory standard that would support setting aside the Article 15 or the removal of the DA Form 2627 from his OMPF.

5.  By regulation, an enlisted STAB will consider records not reviewed by a regular board, that were not properly constituted because of a material error when reviewed by a regular board, or of Soldiers on whom derogatory information has been properly substantiated which may warrant removal from a selection list.  The evidence of record confirms there was no clear injustice that would warrant the applicant's Article 15 to be set aside.  As a result there is an insufficient basis to support reinstatement of the applicant's original date of rank to SSG/E-6 and/or to provide him any back pay and allowances based on rank reinstatement.  Further, given there is no finding of error or injustice related to the Article 15 in question, there is also no evidence of a material error in his record that would support his consideration for promotion to SFC/E-7 by a STAB.

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)                                         AR20090009024



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ABCMR Record of Proceedings (cont)                                         AR20090009024



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