IN THE CASE OF:	

		BOARD DATE:	6 October 2009  

		DOCKET NUMBER:  AR20090013321 


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, reconsideration of an earlier request that the findings and punishment set forth in the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 17 February 2009, be set aside, the document removed from his official military personnel file (OMPF), his rank be reinstated, and remittance of the pay he forfeited as a result of 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).

3.  The applicant provides a personal memorandum and the following evidence in support of his application:

	a.  a training schedule for the Medical Simulation Training Center at Fort Bragg, NC, that shows the Expert Field Medical Badge (EFMB) training was held on 11 August 2008.  The training schedule also shows the classes that the applicant taught were 
Pre-Deployment Medical Training and Improvised First Aid Kit;

	b.  a copy of an undated operations order, subject:  Personnel Support for Medical Simulation Training Center (MSTC) Construction, Control No. 08-06020900;

	c.  a copy of a memorandum dated, 15 August 2008, subject:  Request for Class VIII Items;
	d.  a copy of invoice number 12680, dated 27 August 2008, from DrMass.com, Mass Group, Inc., Training Aids Super Store, with attached DA Form 3903 (Visual Information Work Order Forms);

	e.  a copy of DD Form 844 (Requisition for Local Duplicating Service), dated 14 August 2008;

	f.  a copy of invoice ticket number 4014479-01, dated 14 August 2008 for goggles;

	g.  a copy of a medical supply list for Soldiers;

	h.  a copy of a memorandum for record, dated 4 September 2008, which shows the applicant purchased used boots and clothing from the Fort Bragg Thrift Store;

	i.  a copy of a memorandum for record, dated 24 September 2008, subject:  Blackberry End-User Security with a DD Form 1367 (Commercial Communication Work Order);

	j.  four DA Forms 2062 (Hand Receipt/Annex Number) which show the applicant signed for night vision devices, weapons, and two Blackberrys;

	k.  a copy of DA Form 4856 (Development Counseling Form), dated 11 July 2008; and 

	l.  a copy of the applicant's administrative leave record that shows he was on leave from "071110 to 071209."
 
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090004736 on 4 June 2009.

2.  The applicant's personal statement and all items in paragraph 3 of the APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE are the new evidence which require the Board to reconsider the applicant's initial request. 

3.  The applicant 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) on 5 April 2001.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 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 rank of staff sergeant (SSG)/pay grade E-6 with a date of rank of 1 June 2007.

4.  The applicant's military personnel records contain a DA Form 2166-8 (Noncommissioned Officer (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 Captain (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 4 December 2007, 1 February 2008, 11 July 2008, and 1 August 2008.

5.  On 21 November 2008, the applicant's commander notified him of his intent to impose nonjudicial punishment under the provisions of Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty without authority, to wit:  0800 Expert Field Medical Badge training, on or about 21 September 2008 in violation of Article 86, UCMJ; and for making an official statement to MAJ S_____ with intent to deceive, 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 effect, on or about 10 July 2008 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 [physical training] with the company on Wednesday; otherwise, the expected time to conduct accountability of the range is 0700," this in violation of Article 107, UCMJ.

6.  On 5 February 2009, the applicant signed the Article 15 indicating he did not demand trial by court-martial; he requested an open hearing; he did not request a person to speak on his behalf; 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 battalion commander signed the Article 15 and directed the applicant's reduction to sergeant (E-5), forfeiture of $1,202.00 pay per month for 2 months, and 45 days of extra duty.  The commander directed the Article 15 be filed in the restricted portion of the applicant’s OMPF.  The applicant was advised of his right to appeal to the brigade commander.  The applicant signed item 7 and indicated that he wished to appeal the Article 15 and that he would submit additional matters for consideration by the appellant authority.  (Even though the commander directed the Article 15 to be filed in the applicant's restricted portion of his OMPF, as of the date of this Board it still has not been filed.)

7.  On 11 February 2009, a member of the Judge Advocate General's Corps reviewed the appeal and it was his opinion that "the proceedings were conducted under relevant laws and requirements and the punishment imposed was appropriate under the circumstances."
8.  On 17 February 2009, after consideration of all matters presented in appeal, the brigade commander denied the applicant’s appeal.

9.  As new evidence in support of his application, the applicant provided the following rebuttal in memorandum format:

	a.  He stated that the actual date that the EFMB training started was 11 August 2008.  He also provided a master schedule for the Medical Simulation Training Center highlighting all the classes that he taught;

	b.  He provided an operations order from the Commander, XVIII Corps, to four subordinate units directing them to provide Soldiers to support the construction of the Medical Simulation Training Center lanes for the EFMB during the period 30 June 2008 to 29 August 2008.  Paragraph 4c of the order shows that "on the first day of duty, 30 June 2008, Soldiers will report to range control at 0630 hours and make contact with the Surgeon POC [point of contact], MAJ S_____;"

	c.  He provides a copy of an attendance roster for training on 10 July 2008 that he prepared for MAJ S_____ saying the MAJ neglected to maintain an accurate accountability roster;

	d.  He provides a comprehensive list of the medical supplies and equipment and their estimated costs that he was required to procure to support the EFMB site.  He states he was to submit this list with projected costs to MAJ S_____.  After the list was approved, he was to procure the items and take them to the EFMB construction site.  He further states he concurrently provided logistical support to CPT D_____-S_____ for the opening ceremony of the Medical Simulation Training Center range for the EFMB;

	e.  He provides copies of commercial communication work orders and hand receipts to show he also was required to secure Blackberrys for MAJ S_____ for the EFMB training site.  He points out that MAJ S_____ signed the user agreement for his Blackberry on 24 September 2008;

	f.  He states that he understood he was not expected to be at any of the training [EFMB] due to all the tasks he had to complete.  He states, "CPT D____-S____ who was my supervisor was aware of all the tasks that were given to me to complete."  He continues with "MAJ S____ gave MSG J____ authority to give me all tasks that needed to be completed.  Even during the EFMB, I was bring[ing] items that were not requisitioned prior to the conduct of the EFMB";

	g.  He provided his personal annual leave accountability log published by the Defense Finance and Accounting Service to show he started leave on 10 November 2007 and returned on 9 December 2007.  Therefore, he states that his NCO Evaluation Report ending on 8 November 2008 falsely lists the date of his initial counseling at the start of the rating period as 4 December 2007 when he was on leave.

	h.  He provided a counseling form showing that MSG D____ counseled him on 11 July 2008 for his questionable personal accountability and integrity.  The counseling form shows that he was in violation of Article 107 of the UCMJ for making false statements.  MSG D____ recommended UCMJ action.  The counseling form's corrective action plan shows that the applicant was to meet face to face with CPT D____-S____ every morning and afternoon for guidance and then to back brief on specific tasks accomplished each day; provide daily emails to MAJ S____, 
CPT D____-S____, and MSG D____ on the status of the range [EFMB range]; inform leadership of any personal and professional appointments 72 hours prior to appointment or commitment; become involved as an instructor at the EFMB; and to conduct a "battle rhythm" of his ongoing tasks.

10.  Army Regulation 27-10, chapter 3 (Nonjudicial Punishment), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.  Nonjudicial punishment is imposed to correct misconduct in violation of the UCMJ.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty adjusting to disciplined military life, and similar deficiencies.  Nonjudicial punishment provides commanders with an essential and prompt means of maintaining good order and discipline and promotes positive behavior changes in Soldiers without the stigma of a court-martial conviction.  In the administrative processing of nonjudicial punishment, the Soldier has the right to remain silent, to counsel, to demand trial, to an open hearing, to present evidence, to call witnesses, examine available evidence, and appeal.  

11.  Army Regulation 27-10, paragraph 3-43e (Transfer or Removal of Records of Nonjudicial Punishment), states that Army Regulation 15-185 (Army Board for Correction of Military Records) contains policy and procedures for applying to the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the findings and punishment set forth in the DA Form 2627, dated 17 February 2009, should be set aside, the document removed from his OMPF, his rank reinstated, and remittance of the pay he forfeited as a result of the nonjudicial punishment.

2.  In the applicant's request for reconsideration he submits documents and arguments that he claims proves he was innocent of the offenses for which he received nonjudicial punishment.  In the first specification of the Article 15, the applicant's new argument is that with all the tasks he was given supporting the EFMB, he believes he was not expected to attend the training.  His chain of command obviously saw this differently and the applicant still has not produced evidence showing he was excused from the EFMB training.  As to the second specification of the Article 15, he still has provided no evidence that he did not make a misleading statement to MAJ S____, a superior commissioned officer.

3.  In the absence of evidence showing a procedural error, there is no basis to remove the applicant's Article 15.

4.  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 to amend the decision of the ABCMR set forth in Docket Number AR20090004736, dated 4 June 2009.



      _____________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)                                         AR20090013321



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013321



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1