IN THE CASE OF:	  

		BOARD DATE:	  29 October 2010

		DOCKET NUMBER:  AR20100011269 


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 reconsideration of his original request to have his record of nonjudicial punishment expunged from his records.

2.  The applicant states he was told by the chaplain's assistant that key leaders wanted to "throw the book at him."  He had no legal support and felt appealing his Article 15 under the Uniform Code of Military Justice (UCMJ) would land him in front of an even more hostile audience.  He feels he was denied his right to due process because he was not afforded the opportunity to consult with an Equal Opportunity Advisor in regard to his Article 15.  Finally, he contends he sent the email to his wife who in turn posted it on the blog.  He never had direct control of the blog and failure to grant relief equates to continued punishment, an injustice, and a hardship.

3.  The applicant provides two self-authored statement and two witness statements.

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 AR20080018231, on 5 February 2009.


2.  Although, the applicant's request is beyond the 1-year time limit for reconsideration, he provided two self-authored statements which contain new arguments and two witness statements which were not previously considered by the Board and merit consideration by the Board.

3.  On 31 October 2005, while deployed in Iraq, the applicant was recommended for a field grade nonjudicial punishment under the provisions of Article 15, UCMJ, for repeated failure to obey orders and policy regarding the disclosure of information on a web blog.

4.  On 9 January 2006, the applicant was notified that he was being considered for punishment under Article 15, UCMJ, for dereliction of duty and wrongfully and willfully posting to an internet web blog a detailed account relating to the destruction and recovery operations that resulted from a fatal enemy attack without receiving affirmative clearance, in violation of operational security policy and despite counseling informing him he could not post such blogs without prior approval by his command.  He was advised of his right to consult with legal counsel to decide whether to accept the Article 15 or demand trial by court-martial instead.  He had 48 hours to decide what to do.

5.  On 15 January 2006, having been afforded the opportunity to consult with counsel, he elected not to demand trial by court-martial, he requested a closed hearing, he did not request a person speak in his behalf, and he elected to present matters in defense, mitigation, and/or extenuation in person.

6.  On 16 January 2006, having considered the matters presented by the applicant, the proper authority imposed the punishment of reduction to the rank/grade of SPC/E-4.  He also directed the original DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be filed in the performance portion of his official military personnel file (OMPF).  The applicant was advised that he had 5 calendar days to appeal the punishment imposed.

7.  On the same date, the applicant elected not to appeal the punishment.

8.  On 14 April 2006, the applicant was released from active duty and returned to his National Guard unit following completion of his required active service.  Although his DD Form 214 (Certificate of Release or Discharge from Active Duty) erroneously showed his rank/grade as sergeant (SGT)/E-5, a DD Form 215 (Correction to DD Form 214) corrected his DD Form 214 to show he was released from active duty in the grade of SPC/E-4.  He was honorably discharged from the Army National Guard on 16 July 2006 in the rank/grade of SPC/E-4.

9.  The previous ABCMR decision denied his request and stated the nonjudicial punishment was imposed based on the repeated nature and severity of the offense.  The punishment was neither unjust nor disproportionate to the offense and there was no evidence of any mitigating circumstances or substantive violation of any the applicant's rights. 

10.  He provides additional arguments and witness statements which summarily state:

   a.  Conversations were overheard from the chain of command stating, in effect, they were are going to make an example out of the [applicant]; they would be happy when he was gone but until then they would make his life a living [explicit]; and they would be happy when he was gone because they could not stand him;

   b.  He was not assisted with his personal issues but rather it appeared the commander focused on punishing him for his issues;

   c.  He was belittled and harassed by his peers and chain of command.  The blog was not offensive but was beautifully written, thoughtful, and respectful.  Further, the witness commented that another Soldier posted detailed photos of a major observation point which jeopardized the safety of Soldiers.  This Soldier received reduction in rank, forfeiture of 6 months pay, and extra duty.  All but the extra duty was suspended.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not afforded due process because he was denied the right to consult with an Equal Opportunity Advisor and did not have legal support.  He further contends he was, in effect, punished for posting contents to a blog for which he had no direct control over the publishing.

2.  Careful consideration was given to his new arguments and new evidence; however, neither is compelling enough to warrant removal of the Article 15 from his OMPF.  The evidence clearly shows he accepted a field grade Article 15 for dereliction of duty and wrongfully and willfully posting to an internet web blog a detailed account relating to the destruction and recovery operations that resulted from a fatal enemy attack without receiving affirmative clearance, in violation of operational security policy and despite counseling informing him he could not post such blogs without prior approval by his command.  His witness statements present personal observations which are insufficient evidence to warrant the correction of his record. 

3.  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 to amend the decision of the ABCMR set forth in Docket Number AR20080018231, dated 5 February 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)                                         AR20100011269



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ABCMR Record of Proceedings (cont)                                         AR20100011269



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