IN THE CASE OF:	  

		BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100015390 


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 removal of a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)), dated 9 August 2003, from his Official Military Personnel File (OMPF).  

2.  The applicant states the Article 15 was unjust, malicious and unwarranted.  He claims it was alleged he did not go to the position of at ease when he was instructed to do so by a first sergeant (1SG).  He claims the Article 15 was imposed while he was in training for deployment to Iraq at Camp McGregor, New Mexico.  He states his company was attached to another unit for deployment to Iraq in August 2008, and he was given an Article 15 hearing but his witnesses were not allowed to appear at the hearing.  He claims he presented letters from his commander and a legal service assistant; however, these letters were ignored.  

3.  The applicant states he initially went to the unit’s equal opportunity representative to file a complaint against the same 1SG; however, his complaints were ignored.  His complaints ended up with the unit commander who sent him for a mental status evaluation without following proper procedure.  He claims he was ultimately given an Article 15 and demoted two weeks before he was offered a sergeant first class (SFC) position with his unit back in New Jersey.  He states that in spite of this, he went to Iraq and completed the mission with exceptional service.  He states he is one of the few Soldiers receiving two awards during the deployment in Iraq.  He states this is the first and only disciplinary action in his military record after 16 years of honorable service.  He claims he would like to complete his service with a clean record.  
4.  The applicant provides the following documents in support of his application:

* Department of Defense (DOD) Inspector General (IG) Letter, dated 
28 April 2000
* United States Trial Defense Service Letter, dated 19 August 2008
* Company Commander Statement
* Equal Opportunity Office Electronic Mail (e-mail) Message with accompanying DA Form 2823 (Sworn Statement)
* IG Investigation Report

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that he is currently a member of the New Jersey Army National Guard (NJARNG) on active duty and holds the rank of sergeant 
(SGT/E-5).

2.  On 12 August 2008, while the applicant was a member of the NJARNG serving on active duty at Fort Bliss, Texas, as a staff sergeant/E-6 (SSG/E-6), he was notified that his battalion commander was considering whether he should be punished under Article 15 of the UCMJ for disobeying a lawful order from a 1SG; and being disrespectful in language toward a SFC/E-7, known to him to be his superior, on 5 August 2008.  

3.  On 20 August 2008, the applicant elected not to demand a trial by 
court-martial and instead chose for the matter to be handled by his battalion commander at an open hearing.  He also elected not to request a person to speak on his behalf and indicated he would present matters in defense, mitigation, and/or extenuation in person.  Subsequent to the hearing, the applicant’s battalion commander imposed the following punishment on the applicant:  reduction to SGT/E-5, a forfeiture of $1,500.00, and 45 days of extra duty.  The battalion commander directed the original DA Form 2627 be filed in the performance section of the OMPF.  The applicant appealed the punishment and his appeal was reviewed by a JAG attorney, who opined that the proceedings were conducted in accordance with law and regulation, and recommended the superior authority use his discretion in lessoning the monetary impact.  

4.  On 2 September 2008, the appellate authority, the brigade commander, granted the appeal by suspending the forfeiture portion of the punishment.  All other punishment imposed remained in effect.   

5.  A review of the applicant's OMPF reveals that the DA Form 2627 in question is in fact filed in both the performance (P) and restricted (R) portions of his OMPF.  

6.  The applicant provides a DOD IG letter, dated 28 April 2010, that indicates his allegation his company commander referred him to a mental status evaluation in reprisal for his protected communication to a military equal opportunity advisor was not substantiated; however, his company commander did fail to follow procedural requirements when referring him for the mental status evaluation.  

7.  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, MCM [Manual for 
Courts-Martial].  Paragraph 3-18(1) 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, in pertinent part, 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. 

8.  Paragraph 3-37b(1)(a) of the military justice regulation states, in pertinent part, that the decision whether to file a record of non-judicial punishment (NJP) in the performance section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

9.  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.  

10.  Chapter 7 of Army Regulation 600-37 contains guidance on appeals and petitions for removal of unfavorable information from official personnel files and states, in pertinent part, 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. 

11.  Paragraph 7-2c of Army Regulation 600-37 contains guidance on petitions for transfer of Articles 15 and states, in pertinent part, that records of NJP may be transferred upon proof that their intended purpose has been served, or that their transfer would be in the best interest of the Army.  Transfer requests should be 
submitted to the Department of the Army Suitability Evaluation Board (DASEB).  The authority to adjudicate requests for removal of a DA Form 2627 from the OMPF rests with the ABCMR.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the DA Form 2627 in question should be removed from his OMPF because it was unjust has been carefully considered.  However, the evidence is not sufficient to support this claim.  

2.  The DOD IG letter provided by the applicant fails to provide any evidence related to the imposition of the Article 15 and confirms the mental status evaluation requested by his company commander was not taken in reprisal for a protected communication.  Therefore, it provides an insufficient evidentiary basis to support removal of the Article 15 from his OMPF.  

3.  By regulation, 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. 

4.  The evidence of record confirms the applicant's Article 15 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 offense.  



5.  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.  Further, the applicant's appeal of the Article 15 punishment was properly considered through the appellate process and his appeal was partially granted on the basis of mitigating financial impact of the punishment.  The appeal found no error or injustice in the NJP process.  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 Article 15 from the applicant's OMPF. 

7.  The filing decision by the Article 15 imposing commander was to file the
DA Form 2627 in question in the performance section of the OMPF; however, a copy of the DA Form 2627 remains filed in both the performance and restricted sections of the 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 Article 15 be transferred from the 
P to the R portion of his OMPF based on the purpose of the document being served, or that it is in the best interest of the Army.  This request should be submitted to the DASEB in accordance with the provisions outlined in 
Army Regulation 600-37.  

8.  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 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)                                         AR20100015390



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ABCMR Record of Proceedings (cont)                                         AR20100015390



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