IN THE CASE OF:	  

		BOARD DATE:	  9 December 2009

		DOCKET NUMBER:  AR20090011678 


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 a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 15 April 2005 be transferred from the performance section to the restricted section of his official military personnel file (OMPF) or removed entirely from his OMPF.

2.  The applicant states, in effect, that the Article 15 was unjust given the lack of procedural due process afforded him and that all administrative remedies have been exhausted.  He contends that due to the Department of the Army Suitability Evaluation Board (DASEB) appeal and subsequent request for reconsideration, he spent a significant amount of time continuing his attempts to obtain a copy of the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation that served as the basis for the Article 15 he is asking to be removed from his OMPF.  He goes on to state that prior to the submission of this application he continued to serve his country as an Active Guard Reserve (AGR) Soldier, that he has complied with permanent changes of station several times, and despite the assistance of numerous legal assistance attorneys has never been able to obtain copies of the Army Regulation 15-6 investigation.

3.  The applicant contends that he received an Article 15, dated 15 April 2005, following an Army Regulation 15-6 investigation and the punishment imposed was a reduction to E-5.  He claims the Article 15 was legally insufficient for two reasons:  (1) the commander imposing it lacked the authority to promote or reduce his rank in accordance with paragraph 7-2 of Army Regulation 140-158 (Army Reserve/Enlisted Personnel Classification, Promotion, and Reduction) which states that a reduction for misconduct under Article 15, UCMJ, Army Regulation 27-10 (Military Justice), is not authorized for AGR staff sergeants through sergeants major and all other sergeants first class through sergeants major; and (2) he was never afforded due process of the Army Regulation 15-6 investigation in that he never received a written copy of the proposed adverse action, he never received the findings and recommendations, and he was never given an opportunity to respond.

4.  The applicant states that in the subsequent investigation and appeal of the Article 15, Major A____ made several requests for the documents surrounding the Army Regulation 15-6 investigation, but the unit refused to produce any records and that Major A____ was successful in assisting him in regard to regaining his rank.  He requests that the Article 15 be transferred to the restricted portion of his OMPF or permanently deleted from his OMPF due to the failure to produce a copy of the Army Regulation 15-6 investigation coupled with the questionable integrity of the commanders of the 321st Civil Affairs Brigade.

5.  The applicant provides memoranda dated 26 June 2007 and 21 February 2008; four letters of recommendation; a memorandum, dated 16 August 2007; two Noncommissioned Officer Evaluation Reports (NCOERs); and a memorandum, dated 6 September 2007, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Having prior active service in the Regular Army and inactive service in the U.S. Army Reserve, the applicant entered active duty on 27 April 1997 in an AGR status.  The applicant's NCOER covering the period April 2001 through March 2002 shows he was promoted to staff sergeant on 1 January 2000.

2.  A DA Form 2627, dated 15 April 2005, shows that nonjudicial punishment was imposed against the applicant for signing a false official document (NCOER) with intent to deceive.  His punishment consisted of a reduction to sergeant/E-5, a forfeiture of pay (suspended), and extra duty.  The issuing commander directed that the original DA Form 2627 be filed in the performance fiche of the applicant’s OMPF.  The applicant did not appeal the Article 15.

3.  Orders, dated 8 June 2006, show the applicant was promoted to staff sergeant effective 1 January 2000.

4.  On 22 May 2007, the applicant submitted an appeal to the DASEB requesting that the Article 15 imposed on 15 April 2005 be transferred from the performance portion to the restricted portion of his OMPF.  His appeal is not available.

5.  The applicant provided a memorandum, dated 16 August 2007, from Major A____, Chief, Administrative Law, at Headquarters, 88th Regional Readiness Command, Fort Snelling, Minnesota.  He states, in pertinent part, that on numerous occasions he requested a copy of the Army Regulation 15-6 investigation which purportedly served as the basis for the applicant's Article 15.  He states that the unit initially indicated it would provide him with the documents but ultimately refused to do so after numerous requests.

6.  On 25 January 2008, the DASEB voted to deny the applicant’s request to transfer the DA Form 2627 in question from the performance section to the restricted section of his OMPF.

7.  A review of the performance section of the applicant’s OMPF on the integrated Personnel Electronic Records Management System revealed a copy of the DA Form 2627 imposed on 15 April 2005.

8.  Paragraph 7-2 of Army Regulation 140-158, in effect at the time, stated that centralized promotion authority authorized throughout the regulation did not divest commanders of the authority to reduce personnel for inefficiency or conviction by a civil court.  However, reduction for misconduct under Article 15, UCMJ, Army Regulation 27-10, was not authorized for AGR staff sergeants through sergeants major and all other sergeants first class through sergeants major.  Administrative reduction authority for attached or assigned Soldiers in the ranks of sergeant and staff sergeant was delegated to field grade commanders of an organization authorized a commander in the grade of lieutenant colonel or higher.  Paragraph 7-9a(1) of this regulation states that AGR Soldiers, staff sergeants through sergeants major, may not be reduced in grade under this provision (reduction for misconduct or conviction by civil court/UCMJ, Article 15).

9.  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.  Table 2-1 of the regulation provides, in pertinent part, that a DA Form 2627 will be filed in the performance or restricted section of the OMPF as directed by the issuing commander (item 5 of DA Form 2627).  Allied documents accompanying the Article 15 will be filed in the restricted section.

10.  Paragraph 1-9c of Army Regulation 15-6 states that, except as provided in paragraph 1-9d, when adverse administrative action is contemplated against an individual (other than a civilian employee), including an individual designated as a respondent, based upon information obtained as a result of an investigation or board conducted pursuant to this regulation, the appropriate military authority must observe the following minimum safeguards before taking final action against the individual:  (1) notify the person in writing of the proposed adverse action and provide a copy, if not previously provided, of that part of the findings and recommendations of the investigation or board and the supporting evidence on which the proposed adverse action is based; (2) give the person a reasonable opportunity to reply in writing and to submit relevant rebuttal material; and (3) review and evaluate the person's response.
11.  Paragraph 1-9d of Army Regulation 15-6 states that there is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulations or other directives that provide procedural safeguards, such as notice to the individual and opportunity to respond.  For example, there is no requirement to refer an investigation conducted under this regulation to a Soldier prior to giving the Soldier an adverse evaluation report based upon the investigation because the regulations governing evaluation reports provide the necessary procedural safeguards.
12.  Army Regulation 15-6, chapter 4 (Informal Investigations and Boards of Officers), paragraph 4-3, states that informal procedures are not intended to provide a hearing for persons who may have an interest in the subject of the investigation or board.  No respondents will be designated and no one is entitled to the rights of a respondent.  The investigating officer or board may still make any relevant findings or recommendations, including those adverse to an individual or individuals.

13.  Paragraph 3-18e (Other Rights) of Army Regulation 27-10 states that the Soldier will be informed of the right to:  (1) fully present the Soldier's case in the presence, except in rare circumstances, of the imposing commander; (2) call witnesses; (3) present evidence; (4) request that the Soldier be accompanied by a spokesperson; (5) request an open hearing; and (6) examine available evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument that the commander imposing the Article 15 lacked the authority to reduce his rank has merit.  The governing regulation states that reduction for misconduct under Article 15 is not authorized for AGR staff sergeants through sergeants major.  The applicant's punishment included a reduction to sergeant/E-5; therefore, it appears an injustice has occurred.  As a result, it would be equitable to redact the portion of the punishment reducing the applicant to sergeant/E-5 from the DA Form 2627 in question.  It is noted that on 8 June 2006 the applicant was promoted to staff sergeant effective 1 January 2000, meaning that he has already been restored in rank.

2.  Notwithstanding Major A____'s assertion that he was denied a copy of the applicant's Army Regulation 15-6 investigation, there is insufficient evidence to show the applicant was denied a copy of the Army Regulation 15-6 investigation.

3.  There is no evidence that the DA Form 2627 was improperly imposed.  The DA Form 2627 imposed on 15 April 2005 was properly filed in the performance section of the applicant’s OMPF.  Based on the foregoing, there is no basis for granting the applicant's request that the DA Form 2627 be transferred from the performance section to the restricted section of his OMPF or removed entirely from his OMPF.

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 corrected by revoking the reduction to E-5 punishment from the DA Form 2627 imposed on 15 April 2005.

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 transferring the DA Form 2627 from the performance section to the restricted section of his OMPF or removing it entirely from the OMPF.



      ____________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)                                         AR20090011678



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ABCMR Record of Proceedings (cont)                                         AR20090011678



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