BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100012014 


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, that a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), be set aside.

2.  The applicant states the following:

	a.  The allegation of solicitation for sex was proven to be false.

	b.  The Article 15 (or nonjudicial punishment (NJP)) should not have been given at the general officer level.

	c.  All witnesses should have been called to testify during the hearing.

	d.  His chain of command waited until 75 percent of his Soldiers had graduated to initiate the NJP.

3.  The applicant provides the following:

* an appeal letter to the Department of the Army Suitability and Evaluation Board (DASEB)
* a Summarized Transcript of Administrative Separation Board
* multiple official military personnel file (OMPF) document extracts which include the NJP in question


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 8 May 1990. 
As of the date of his application to this Board, he was serving on active duty as a G3 Plans and Operations Noncommissioned Officer in the rank of sergeant first class (SFC)/E-7 at Fort Jackson, South Carolina.

2.  On 12 January 2009, while serving as an SFC with Company A, 369th Army Adjutant General Battalion, U.S. Army Soldier Support Institute (USASSI), Fort Jackson, the USASSI Commander, a brigadier general (BG)/O-7, notified the applicant that he was considering whether the applicant should be punished under Article 15, UCMJ, for the following:

	a.  wrongfully engaging in an illegal association with Soldiers-in-training by using sexually suggestive language on four separate occasions, once in front of a group of Soldiers and once with different female Soldiers on separate occasions;

	b.  wrongfully engaging in an illegal association with a female Soldier-in-training by providing her with $2.00 to purchase snacks; and

	c.  willfully violating a "no-contact" order on divers occasions between on or about 18-22 December 2008.

3.  On 15 January 2009, the applicant elected not to demand a trial by court-martial and instead chose for the matter to be handled by the USASSI Commander at an open hearing and to present matters in defense, mitigation, and/or extenuation.

4.  On 15 January 2009, the USASSI Commander imposed NJP consisting of a forfeiture of $1975.00 pay for 1 month (suspended to be automatically remitted if not vacated before 14 July 2009) and a written reprimand.  The applicant elected to appeal the punishment, submit additional matters, and signed a DA Form 2627 confirming this election on 15 January 2009.

5.  On 12 February 2009, the applicant's appeal was reviewed by the Staff Judge Advocate who opined that the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate for the offense committed.

6.  On 12 February 2009, the Commanding General, U.S. Army Basic Combat Training Center of Excellence, the appellate authority, denied the applicant's appeal.  On 2 March 2009, the applicant acknowledged the action taken on his appeal.

7.  On 24 July 2009, an administrative separation board convened to determine if the applicant should be discharged from military service prior to his normal expiration of term of service under the provisions Army Regulation 635-200 (Personnel Separations), paragraph 14-12c.  After considering all of the evidence before it, the administrative separation board found the allegations leading to the separation action were supported by the preponderance of fact.  However, the board recommended he be retained on active duty and the separation authority approved the recommendation.

8.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial.  Paragraph 3-7 provides guidance on "who may impose NJP" and states that any commander is authorized to exercise the disciplinary powers conferred by Article 15.

9.  The term commander, as provided for in chapter 3 of Army Regulation 27-10 means a commissioned or warrant officer who, by virtue of that officer's grade and assignment, exercises primary command authority over a military organization or prescribed territorial area that under pertinent official directives is recognized as a command.  The term imposing commander refers to the commander or other officer who actually imposes the NJP.  Commands include:

* companies, troops, and batteries
* numbered units and detachments
* missions
* Army elements of unified commands and joint task forces
* service schools
* area commands

10.  Paragraph 3-7d of Army Regulation 27-10 states that any commander having authority under Article 15, UCMJ, may limit or withhold the exercise of such authority by subordinate commanders.  For example, the powers of subordinate commanders to exercise Article 15 authority over certain categories of military personnel, offenses, or individual cases may be reserved by a superior commander.  A superior authority may limit or withhold any power that a subordinate might otherwise have under this paragraph.

11.  Paragraph 3-18(1) of Army Regulation 27-10 provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states that 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 there is 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.

12.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

13.  Chapter 7 of Army Regulation 600-37 contains guidance on appeals and petitions for removal of unfavorable information from official personnel files.  It states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should not have received NJP at the general officer level and that it should be set aside.

2.  By regulation, the powers of subordinate commanders to exercise NJP authority over certain categories of military personnel, offenses, or individual cases may be reserved by a superior commander.  As a result, the commander in question, a service school commander in the rank of BG/O-7, was authorized to issue the NJP.

3.  By regulation, the basis for any set-aside action must show "clear injustice," which means an unwaived legal or factual error 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.

4.  The evidence of record confirms the applicant's NJP processing was accomplished in accordance with the applicable law and regulation and that the imposing commander determined beyond a reasonable doubt that the applicant was guilty of the charged offenses.  There is no evidence of record or independent evidence provided by the applicant that would call into question the validity of this decision of the imposing commander.

5.  Further, the applicant's appeal of the NJP was properly considered through the appellate process and his appeal was denied by the appropriate appellate authority.  Therefore, absent any clear and convincing new evidence of a clear injustice, there is an insufficient evidentiary basis to support a set aside of the NJP action in question.

6.  The governing regulation also requires that in order for the ABCMR to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record, there must be clear and compelling evidence of clear injustice and/or evidence that shows the document is untrue or unjust, in whole or in part.  There is no evidence of record or independent evidence provided by the applicant that satisfies this regulatory burden of proof.  Therefore, there is also an insufficient evidentiary basis to support removal of the NJP from the applicant's OMPF.

7.  Further, the evidence of record confirms an administrative separation board found the applicant did commit the alleged offenses, but elected that he be retained in the service.  These findings provide no basis to question the NJP.

8.  The NJP imposing commander decided to file the DA Form 2627 in question in the performance section of the applicant's OMPF.  The applicant is advised that although there is an insufficient evidentiary basis to support removal of the DA Form 2627 from his OMPF, he retains the option to request the NJP be transferred from the performance section to the restricted section of his OMPF.  This request should be submitted to the DASEB in accordance with the provisions outlined in Army Regulation 600-37.

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 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)                                         AR20100012014



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ABCMR Record of Proceedings (cont)                                         AR20100012014



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