IN THE CASE OF:	

		BOARD DATE:	 1 December 2009 

		DOCKET NUMBER:  AR20090009968 


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 her Article 15, dated 5 May 2008, be set aside and her rank be reinstated from corporal (CPL)/E-4 to sergeant (SGT)/E5.

2.  The applicant states she received a company grade summarized Article 15 on 8 April 2000 for misconduct while attending school at Fort Leonard Wood, MO, and fulfilled her punishment.  However, she later received a field grade Article 15 from her battalion commander for the exact same event and that the same evidence was used to support both punitive punishments.  

3.  The applicant also states that she solicited help from a defense counsel at the Fort Leonard Wood, MO, Office of the Staff Judge Advocate, in an attempt to remedy the improper imposition of the Article 15 but the defense counsel was unable to contact the appropriate individuals at Fort Leonard Wood, MO.  Her defense counsel then authored a letter to her new chain of command at Fort Drum, NY, to take action on the matter; however, her new battalion commander did not take any action.

4.  The applicant adds that the company commander of A Company, 84th Engineer Battalion, found her guilty of having an inappropriate relationship with another student on or about 7 April 2008 while attending additional skill identifier (ASI) school.  Her punishment included 14 days of extra duty, but she was allowed to finish her ASI course. 


5.  The applicant also adds that on 5 May 2008, the battalion commander of the 84th Engineer Battalion found her guilty for a sexual relationship between 22 March 2008 and 6 April 2008.  It is noted that the beginning date of offense reflects the beginning date of her ASI course and that the ending date was the day before her summarized Article 15 was given.  There was no new investigation for the accusation and the initial investigation regarding the summarized Article 15 was not restarted.  Her punishment included a reduction from SGT/E-5 to specialist (SPC)/E-4, a forfeiture of pay, 45 days of restriction, and 45 days of extra duty.  The next day, she was put on a plane and returned to her Fort Stewart, GA, unit and ultimately on a permanent change of station to Fort Drum, NY.

6.  The applicant also adds that the sworn statement submitted by the Soldier involved with her was initially submitted by that Soldier to her company commander who used that statement for the summarized Article 15.  It appears that the same statement was reopened, slightly modified, was given a new date, and then used against her for the field grade Article 15.  Additionally, it is noted that the first page of the statement used in the summarized Article 15 is identical to the first page of the statement used in the field grade Article 15.  

7.  The applicant further adds that prior to this incident she had great reviews and/or evaluations.  Even after the incident, when she arrived at Fort Drum, NY, although the 84th Engineer Battalion mishandled her paperwork as the database showed she was still a SGT/E-5, she reclaimed her professional ranking through reappearing before the SGT/E-5 promotion board, appointment as a CPL, and promotion back to SGT/E-5.  She petitions this Board to not judge her for the misconduct she was initially punished for, but rather the incorrect procedures and administrative errors, as well as her overall record. 

8.  The applicant provides a copy of the memorandum, dated 14 August 2008, submitted by her former defense counsel; a copy of the DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 8 April 2008; a copy of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 5 May 2000; and copies of two DA Forms 2823 (Sworn Statement), dated 7 and 22 April 2008, in support of her request. 

9.  On 22 October 2009, the applicant provided a copy of her Enlisted Record Brief (ERB), dated 22 October 2009.




CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army SGT/E-5 (she was a CPL/E-4 at the time she submitted her application) who initially enlisted for a period of 4 years on 19 November 2003.  Her records show she holds military occupational specialty 74D (Chemical Specialist).  She was initially promoted through the ranks to SGT/E-5 on 1 May 2006 and was promoted again to SGT/E-5 on 1 October 2009.  

2.  On 8 April 2008, while assigned to A Company, 84th Chemical Battalion, Fort Leonard Wood, MO, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the UCMJ for having an inappropriate relationship with an Initial Entry Training (IET) Soldier and in that this behavior brings discredit upon the armed forces.  Item 2 (Punishment Imposed) of the DA Form 2627-1 does not indicate she received any punishment.  Additionally, she marked the "I do not appeal" block on the DA Form 2627-1.

3.  A copy of this Article 15 is not filed in her Official Military Personnel File (OMPF). 

4.  On 5 May 2008, the applicant accepted NJP under Article 15 of the UCMJ for violating a lawful general order, on different occasions, between on or about 22 March 2008 and 6 April 2008, by wrongfully having a sexual relation with an IET Soldier.  Her punishment consisted of reduction to SPC/E-4, a forfeiture of $1,018.00 pay for 1 month (suspended until 31 May 2008), and 45 days of extra duty (suspended until 31 May 2008).  She again marked the "I do not appeal" block.  A copy of this Article 15 is not filed in her OMPF. 

5.  On 14 August 2008, by memorandum addressed to her gaining commander at Fort Drum, NY, the applicant's defense counsel stated that both Article 15s were essentially for the same misconduct stemming from the same investigation with the language in the second Article 15 changed slightly.  He added that by regulation, when NJP is imposed for an offense, it may not again be imposed for the same offense.  He added that a successor in command or a superior commander has the authority to wholly set aside an Article 15 when the punishment imposed has resulted in a clear injustice.  

6.  There is no indication in the applicant's records that the applicant's gaining commander took any action.

7.  The applicant submitted copies of the two sworn statements, dated 7 and 22 April 2008.  Page 1 of the sworn statement dated 7 April 2008 is identical to page 1 of the sworn statement, dated 22 April 2008.  However, the sworn statement, dated 22 April 2008, consists of 2 pages and contains additional questions and answers whereas the sworn statement dated 7 April 2008 consists of 1 page.  

8.  Army Regulation (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.

9.  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 noncommissioned officers (NCO) 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.  

10.  Paragraph 3-28 of this regulation describes 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Article 15, dated 5 May 2008, should be set aside and her rank be reinstated to SGT.

2.  With respect to the first Article 15, the available evidence confirms that the commander administering the Article 15 proceedings determined that the applicant committed the offense of having an inappropriate relationship with an IET Soldier on a specific date.  Additionally, the available evidence shows that the imposing commander elected not to impose any punishment.  Nevertheless, the applicant was afforded the opportunity to appeal and elected not do so.  

3.  With respect to the second Article 15, the available evidence confirms that the commander administering the Article 15 proceedings determined the applicant committed the offense of violating a lawful general order, on different occasions, between on or about 22 March 2008 and 6 April 2008, by wrongfully having a sexual relationship with an IET Soldier.  The offense here differs from that in the first Article 15 in that she violated the UCMJ on divers occasions.  More importantly, it is clear that the applicant continued the inappropriate relationship after the first Article 15 was administered.  

4.  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 available evidence of record confirms the applicant waived her right to a trial by court-martial and opted for an open Article 15 hearing.  She was afforded the opportunity to appeal but elected not to do so.  There is neither an error nor an injustice.

5.  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 her 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. 

6.  Notwithstanding the defense counsel's memorandum that both Article 15s were for essentially the same misconduct, the available evidence shows otherwise.  Additionally, the governing regulation states that whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander. 

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)                                         AR20090009968



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ABCMR Record of Proceedings (cont)                                         AR20090009968



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