IN THE CASE OF:	  

		BOARD DATE:	    22 July 2010

		DOCKET NUMBER:  AR20090018865 


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 the following:

   a.  Removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 22 April 2009 from his Official Military Personnel File (OMPF); and
   
   b.  Restoration of his rank and grade of staff sergeant (SSG)/E-6 that resulted from the imposition of the Article 15 in question.

2.  The applicant states the following:

* he was demoted from E-6 to sergeant (SGT)/E-5 without proper trial or notification of incident
* he was not afforded the opportunity to be advised by Trial Defense Services (TDS)
* he never received the packet on offense

3.  The applicant provides a copy of the following documents:

* Article 15, UCMJ, dated 22 April 2009 and punishment worksheet
* DA Form 3975 (Military Police Report)
* three DA Forms 2823 (Sworn Statement)
* DD Form 2708 (Receipt for Inmate or Detained Person)


* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* Military Police Desk Blotter
* memorandum, Subject: General Officer Reprimand Issued to (Applicant's name and social security number), Headquarters and Headquarters Company, 18th Combat Sustainment Support Battalion, APO AE 09334
* his Article 15 appeal
* Article 15 appeal from the Senior Defense Counsel

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Regular Army in the rank/grade of SGT/E-5.

2.  The applicant was promoted to SSG/E-6 on 1 April 2001.

3.  On 13 April 2009, the imposing commander notified the applicant of his intent to impose nonjudicial punishment (NJP) under Article 15, UCMJ for the following misconduct and he was advised of his rights:

* operating a vehicle while drunk
* assaulting a person in the execution of civilian law enforcement duties
* fleeing apprehension by driving away from a German Police Officer
* failing to obey a lawful order issued by a sergeant first class (SFC)/E-7
* disrespectful in language toward an SFC

4.  Item 2 of the Article 15 advised the applicant “In deciding what you want to do you have the right to consult with legal counsel located at U.S. Army Trial Defense Services (USATDS).”

5.  In item 3 of the Article 15, the applicant acknowledged he had been afforded the opportunity to consult with counsel.  He did not demand trial by court-martial, he requested a closed hearing in the Article 15 proceedings, and he elected to present matters in person.

6.  After consideration of all matters presented in the closed hearing, the imposing commander decided that, beyond a reasonable doubt, the applicant had committed the offenses.  Item 4 of the Article 15 proceedings does not include the punishment imposed.  A copy of the Field Grade Article 15 Punishment Worksheet signed by the imposing commander indicates he imposed the punishment of extra duty for 15 days, reduction to E-5, and a forfeiture of $1,414.00 pay for 2 months.

7.  The imposing official directed the original DA Form 2627 be filed in the performance section of the applicant’s OMPF.  The applicant was advised of his right to appeal to the commander of the 16th Sustainment Brigade within 5 calendar days.  He elected not to appeal the punishment.  The Article 15 indicated that an appeal made after that time may be rejected as untimely and punishment was effective immediately unless otherwise stated.

8.  On 24 May 2009, the applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB).  DASEB was unable to consider his request for removal of the Article 15 and would only be able to consider his request for transfer of the Article 15 to the restricted section of his OMPF upon his attainment to pay grade E-6.  As a result, the DASEB administratively closed the applicant’s case by letter on 27 August 2009.

9.  Review of the interactive Personnel Electronic Records Management System (iPERMS) failed to show a copy of the subject Article 15 was filed in the applicant’s OMPF.  The restricted portion of his OMPF revealed an earlier UCMJ action.

10.  On 29 April 2009, a Senior Defense Counsel submitted an appeal of the applicant’s Article 15 and stated the following:

* the Article 15 process was conducted in a highly inappropriate manner
* the imposing commander completed the General Officer Memorandum of Reprimand (GOMOR) recommendation 5 days prior to the Article 15 hearing
* the applicant did not receive counseling by TDS prior to his hearing
* the applicant was unprepared to make any informed decision regarding his presentation to the imposing commander
* no mention of assault is made in the police report
* the imposing commander’s judgment against the applicant deprived him of his rank and will hinder his ability to ever advance again

11.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Department of the Army (DA) Enlisted Promotions, U.S. Army Human Resources Command, Alexandria, VA (HRC-Alexandria).  The advisory official recommended the applicant’s request be denied.  The advisory official opined that there was no apparent error based on current Army promotion and reduction policies.  The advisory official cited Army Regulation 600-8-19 (Enlisted Promotions and Reductions), chapter 1, paragraph 9f(2), which stipulates battalion and brigade commanders of provisional units in the grade of lieutenant 


colonel (LTC) or above have promotion authority to the grades of SGT and SSG.  On 22 April 2009, the applicant’s battalion commander imposed punishment under the provisions of Article 15, UCMJ, which reduced him from SSG to SGT.

12.  A copy of the advisory opinion was forwarded to the applicant to allow him the opportunity to submit comments or a rebuttal.  On 27 April 2009, the applicant submitted a copy of his appeal to the Article 15 findings and punishment.  He stated the following:

* he explained to CPT L____ he had not completed his advisement with TDS
* he does not believe the imposing commander provided him a fair hearing
* he denied being intoxicated, evading the police, or assaulting an officer
* he was given a field sobriety test and blood test at Weiden hospital, but he did not see the results 
* the German police said they did not have any blood alcohol content (BAC) results

13.  Army Regulation 27-10 (Military Justice) provides the applicable policies for administration of NJP.  The regulation states that NJP may be imposed to correct, educate, and reform offenders whom 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; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627.  The regulation also states that absent compelling evidence, a properly-completed and valid DA Form 2627 will not be removed from a Soldier’s record.

14.  Army Regulation 27-10, paragraph 3-4 (Personal exercise of discretion), states a commander will personally exercise discretion in the NJP by:

	a.   evaluating the case to determine whether proceedings under Article 15 should be initiated

   b.  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial
   
   c.  determining the amount and nature of any punishment, if punishment is appropriate.

15.  Army Regulation 27-10, paragraph 3-14 (Preliminary inquiry) states:

   a. The commander of the alleged offender must ensure that the matter is investigated promptly and adequately.  The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident.  The investigation should cover:

(1)  Whether an offense was committed

(2)  Whether the Soldier was involved

(3)  The character and military record of the Soldier.

   b.  Usually the preliminary investigation is informal and consists of interviews with witnesses and/or review of police or other informative reports.  If, after the preliminary inquiry, the commander determines, based on the evidence currently available, that the Soldier probably has committed an offense and that NJP procedure is appropriate, the commander should (unless the case is to be referred to a superior commander (see para 3–5)) take action as set forth in this section.

16.  Army Regulation 27-10, paragraph 3-18 (Notification and explanation of rights) states, in part:

   a.  the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15, UCMJ.  The Soldier will also be notified of the maximum punishment that the commander could impose under Article 15, UCMJ.  The Soldier will be provided a copy of DA Form 2627 with items 1 and 2 completed, including the date and signature of the imposing commander.  The Soldier will be provided with a copy of DA Form 2627 and supporting documents and statements for use during the proceedings.  The Soldier will return the copy to the commander for annotation.  It will be given to the Soldier for retention when all proceedings are completed;

   b.  the Soldier will be informed of the right to consult with counsel and the location of counsel.  For the purpose of this chapter, counsel means the following: A judge advocate (JA), a Department of Army (DA) civilian attorney, or an officer who is a member of the bar of a Federal court or of the highest court of a State, provided that counsel within the last two categories are acting under the supervision of either USATDS or a staff or command judge advocate;


   c.  the imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, the commander reasonably believes to be relevant to the offense; and

   d.  punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).  If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier.  The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed.

17.  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 the Army Board for Correction of Military Records (ABCMR); DASEB; Army Appeals Board, Chief of Appeals and Corrections Branch, HRC-Alexandria, OMPF custodian when documents have been improperly filed; Chief of the Appeals Branch of the Army Reserve Personnel Center, and the Chief of the Appeals Branch of the National Guard Personnel Center.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was demoted from E-6 to E-5 without proper trial or notification of the incident.  However, the Article 15 proceedings confirm the imposing commander notified the applicant of his intent to impose NJP under Article 15 in April 2009 for his offenses and he was advised of his right to consult with counsel at TDS.  In the absence of evidence to the contrary, it is presumed the applicant was also notified of the maximum punishment that the commander could impose under Article 15 at that time.

2.  The applicant contends he was not afforded an opportunity to be advised by TDS.  However, in the applicant’s appeal to the Article 15 proceedings, he stated he did not complete his advisement with TDS which confirms he had previously been advised by TDS.

3.  The applicant also contends he never received a packet relating to the offenses.  However, the evidence of record shows he completed item 3 of the Article 15 proceedings and he did not demand trial by court-martial, he requested a closed hearing in the Article 15 proceedings, and he elected to present matters in person.

4.  The imposing commander determined that it would be appropriate to place the Article 15 in the performance section of the applicant's OMPF.  However, review of the applicant’s OMPF in iPERMS failed to show a copy of the Article 15 in question.  The restricted portion of his OMPF includes an earlier UCMJ action.  

5.  The evidence of record shows the applicant applied to the DASEB on 24 May 2009; however, the DASEB was unable to consider his request for removal of the Article 15.

6.  Based on the available evidence, it appears the imposing commander determined the applicant had committed the offenses and imposed the appropriate punishment authorized under his jurisdiction.

7.  After careful review of this case, it has been determined that the applicant has not presented compelling evidence in which to remove the Article 15 proceedings from his OMPF.

8.  In the absence of evidence to the contrary, it must be presumed that the applicant's reduction in grade was correct.  Therefore, there is no basis for setting aside the reduction in rank and grade from SSG to SGT that resulted from the imposition of NJP or reinstating his rank and grade to SSG/E-6.

9.  The statements of appeal from the Senior Defense Counsel are acknowledged.  However, the evidence of record does not support his claims.

10.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090018865



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ABCMR Record of Proceedings (cont)                                         AR20090018865



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