IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090011459 


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 that his Article 15, dated 3 March 2009, be set aside and that his rank be restored to staff sergeant (SSG).  He also requests that the letter of reprimand that he received be removed from his Official Military Personnel File (OMPF).

2.  The applicant states he believes his punishment was excessive, disproportionate based on the offense, and it is related to an earlier Equal Opportunity (EO) complaint he filed on 5 February 2009.  He also believes he was punished twice for the same offense which constitutes double jeopardy.  He states that he sent an email to the U.S. Army Human Resources Command (HRC) inquiring about promotion points and subsequently shared the response with another Soldier.  He received a letter of reprimand for this action and his application for instructor duty was blocked.  

3.  The applicant provides a copy of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 3 March 2009, and allied documents; several character reference letters and/or letters of recommendation; a copy of his DA Form 4187 (Personnel Action), dated 16 October 2008, requesting instructor duty; copies of various emails; copies of his DA Forms 2166-8 (Noncommissioned Officer Evaluation Reports (NCOER)) and DA Forms 2166-8-1 (NCOER Counseling and Support Forms); a copy of a completed informal EO complaint, dated 6 March 2009; and a copy of his "Complaint of Wrong" memorandum, dated 27 April 2009; in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army, on 26 February 2001, and he is currently serving in the rank of sergeant (SGT).  He subsequently executed several reenlistments on various dates.  His records show he holds military occupational specialty 68R (Food Inspection Specialist) and that he was promoted through the ranks to SSG on 1 August 2006.  He was assigned to the Central Pacific District Veterinary Command, Tripler Army Medical Center (TAMC), Hawaii.

2.  On 12 November 2008, the applicant received a letter of reprimand from his battalion commander for failure to obey an order in that he disregarded repeated directives from the Commander (a lieutenant colonel), Central Pacific District Veterinary Command, and his first sergeant that all communications and concerns outside the unit should be cleared or reviewed prior to being elevated or transmitted to higher headquarters.  No filing instructions were given in the letter.

3.  The applicant's records reveal an extensive history of counseling by several members of his chain of command for various infractions, including insubordination, failing to follow instructions, failing to complete assigned duties, unprofessional military appearance, poor attitude, failing to keep the chain of command informed, and/or circumventing the chain of command.

4.  On 3 March 2009, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for treating an NCO with contempt by walking away, on 13 February 2008; willfully failing to obey a lawful order to remove headphones from his ears, on 3 November 2008; willfully disobeying a lawful order to reinstall a computer program, on or about 17 November 2008; being disrespectful in deportment towards an NCO, on or about 29 January 2009; being disrespectful in language towards his first sergeant, on 5 February 2009; being derelict in the performance of his duties in that he failed to participate in physical fitness training, on 5 November 2008; and for being derelict in the performance of his duties in that he failed to keep his face clean and shaven, on 29 January 2009.  His punishment consisted of reduction to SGT/E-5 and a forfeiture of $1,335.00 pay. 

5.  On 3 March 2009, the applicant appealed his punishment and submitted additional matters, including his evaluation reports and various character reference letters and/or letters of recommendation.  



6.  On 6 March 2009, a TAMC Judge Advocate reviewed the applicant's appeal and determined the proceedings were conducted in accordance with law and regulation but the punishment imposed was inappropriate for the offenses committed.  

7.  On 31 March 2009, the Commander, Headquarters, Pacific Regional Veterinary Command, reviewed the applicant's appeal, including matters submitted by the applicant and the legal review, and decided to deny the appeal; however, he suspended the forfeiture of pay.

8.  The applicant's Article 15, together with allied documents, were directed to be filed in the restricted section of the applicant's OMPF.  However, he previously received an Article 15 (received while he was a SGT) that was filed in the restricted section of his OMPF; therefore, the Article 15 dated 3 March 2009 was filed in the performance section. 

9.  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.

10.  Paragraph 3-6 of this regulation addresses the filing of an Article 15.  It states, in pertinent part, that a commander’s decision whether to file a record of NJP in the performance section of a Soldier’s OMPF is as important as the decision relating to the imposition of NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.  If a record of NJP has been designated for filing in a Soldier’s restricted section, the Soldier’s OMPF will be reviewed to determine if the restricted section contains a previous record of NJP.  In those cases in which a previous DA Form 2627 that has not been wholly set aside has been filed in the restricted section and in which prior to that punishment the Soldier was in the rank of SGT or higher, the present DA Form 2627 will be filed in the performance section.  The filing should be recorded on the present DA Form 2627 in block 11.  The Soldier concerned will be informed of the filing of the DA Form 2627 in the performance section.

11.  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 that 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) under conditions, either expressed or implied, that indicate that the commander of the unit to which affiliated to exercise administrative or disciplinary authority over them.  Under similar circumstances, a commander may be assigned territorial command responsibility so that all or certain military personnel in the area will be considered to be of the command for the purpose of Article 15.  To determine if an individual is of the command of a particular commanding officer, refer first to those written or oral orders or directives that affect the status of the individual.  If orders or directives do not expressly confer authority to administer NJP to the commander of the unit with which the Soldier is affiliated or present (as when, for example, they contain no provision attaching the Soldier “for disciplinary purposes),” consider all attendant circumstances, such as the phraseology used in the orders; where the Soldier slept, ate, was paid, performed duty; the duration of the status; and other similar factors.  If orders or directives include such terms as “attached for administration of military justice,” or simply “attached for administration,” the individual so attached will be considered to be of the command of the commander of the unit of attachment for the purpose of Article 15.

12.  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 NCOs 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.  

13.  Paragraph 3-28 of this regulation describes the 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.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by selected agencies such as the Army Board for Correction of Military Records (ABCMR). 

15.  Army Regulation 600-37 (Unfavorable Information) provides the policy for authorized placement of unfavorable information in individual official personnel files.  It provides that unfavorable information will not be filed in an official personnel file unless the individual has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, if desired, that rebuts the unfavorable information.  The referral to the recipient will include reference to the intended filing of the letter and include documents that serve as the basis for the letter.  It also provides that a Letter of Reprimand or GOMOR, regardless of issuing authority, may be filed in the OMPF only upon the order of a General Officer (GO).  Statements and other evidence will be reviewed and considered by the officer authorized to direct filing.  Letters (memorandums) of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Article 15, dated 3 March 2009, should be set aside and his rank should be restored to SSG.  He also contends the letter of reprimand he received should be removed from his OMPF.

2.  The evidence of record confirms that the commander administering the Article 15 proceedings determined the applicant committed the offenses in question during an open Article 15 hearing after considering all the evidence submitted by him.  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 evidence of record confirms the applicant waived his right to a trial by court-martial and opted for an open Article 15 hearing.  

3.  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.  The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and was afforded the opportunity to appeal his punishment through the proper channels.  The evidence submitted by the applicant is not sufficient to change the determination of guilt made by the commander. 
4.  The applicant's dissatisfaction with the unit's morale and/or command climate does not give him a right to violate the UCMJ.  There is no evidence that he was punished for his earlier submission of an EO complaint.  His records clearly show he was counseled prior to this Article 15 for various infractions ranging from insubordination to dereliction of duty.  Furthermore, notwithstanding the applicant's argument that the punishment was excessive, the governing regulation states that whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.

5.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.  Therefore, he is not entitled to relief on this issue. 

6.  The applicant's letter of reprimand is appended to the applicant's Article 15, presumably as evidence of one of the listed offenses.  However, this letter itself is not evidence.  By regulation, such a letter may only be posted to the Soldier's OMPF at the direction of a GO after a Soldier has been given the opportunity to comment.  Since the letter was not filed at the direction of a GO, it should not be filed on his OMPF.  Therefore, this letter should be removed from the allied documents appended to the Article 15. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ____X___  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be removing the letter of reprimand, dated 12 November 2008, from his OMPF.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 

denial of so much of the application that pertains to the applicant’s request for setting aside his Article 15, dated 3 March 2009, and the restoration of his rank to SSG.




      _______ _  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)                                         AR20090011459



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ABCMR Record of Proceedings (cont)                                         AR20090011459



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