IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100019352 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 3 April 2005 be removed from the applicant's personnel file
* the applicant's removal from the sergeant first class (SFC) promotion list be withdrawn
* the applicant be retroactively promoted to SFC effective 1 April 2005 with all back pay and allowances

2.  Counsel states:

	a.  The applicant enlisted in the Vermont Army National Guard in July 1987 and has served continuously since that time.  In March 2005, orders were published promoting him to SFC effective 1 April 2005.  He received mobilization orders to report to Mississippi on 1 April 2005.

	b.  Unbeknownst to the applicant, his unit initiated an investigation in February 2005 for missing items (which included an Army combat uniform (ACU) Gortex jacket) that were taken from the Army Mountain Warfare School.  He found the Gortex jacket in March 2005, but he did not turn it in because he had been accused of stealing the items.  A first lieutenant asked him if he could get her a Gortex jacket since he worked at the Army Mountain Warfare School where the Gortex jacket was being tested.  He gave the Gortex jacket he found to the first lieutenant on 31 March 2005.

	c.  The next day, the applicant entered Title 10 status per mobilization orders.  He was ordered to call the "RIT" commander and report to his office.  At the meeting, the commander told the applicant his orders had been revoked, returning him to Title 32 status.  The commander threatened to court-martial him for his alleged misconduct and he was told he needed to report to a Judge Advocate General officer to discuss his options.

	d.  The applicant spoke with counsel who was concerned to learn the commander was present at the meeting discussing the investigation as he was the appeal authority for action taken as a result of the investigation.  The applicant agreed to accept an administrative reduction in order to allow him to remain on active duty and participate in his deployment.  Unbeknownst to the applicant, he had received promotion orders to SFC that were effective 1 April 2005.  On 30 March 2005, his unit revoked his promotion orders to SFC.  On 3 April 2005, he was administered an Article 15 for wrongfully appropriating military property (ACU Gortex) and was reduced in rank from staff sergeant (SSG) to sergeant (SGT).  As a result of these events, he was effectively reduced two grades, since he was promoted to SFC effective 1 April 2005.  He did not learn of his unit's actions revoking his promotion orders until 4 April 2005, the day after he accepted the Article 15 proceedings.  He would have challenged his unit's actions and demanded a court-martial had he known he was to be promoted.

	e.  The applicant was in a Title 10 status when his Army National Guard unit punished him under the UCMJ.  His original orders ordered him to active duty effective 1 April 2005 with a reporting date to the mobilization station on 4 April 2005.  The day before his period of active duty commenced, his Army National Guard unit revoked his promotion to SFC without his knowledge.  They led him to believe that if he accepted the Article 15 proceedings for the missing Gortex jacket he would be reduced one rank and be allowed to continue with his deployment which he volunteered for.  His unit advised him if he demanded a trial by court-martial he would not be allowed to deploy with his unit.  Unaware he was essentially agreeing to a two-rank reduction, he agreed to the Article 15 proceedings.

	f.  On 3 April 2005 while in Title 10 status, the applicant was reduced to SGT via UCMJ proceedings.  This same day, amended orders were issued regarding his mobilization changing his rank from SSG to SGT, although the date of mobilization remained the same at 1 April 2005.  When he arrived at his mobilization station in Mississippi, he learned of his revoked promotion to SFC and he launched an investigation with the Inspector General (IG).  This investigation went on for several months and during this time he was promoted to SSG.  Upon prompting from the IG's office, his Army National Guard unit further amended his mobilization orders.  On 8 November 2005, orders were issued changing his mobilization date to 4 April instead of 1 April.  This action was likely taken as his command realized they did not have UCMJ authority to issue the Article 15 to the applicant on 3 April 2005.  This action by his Army National Guard unit to cover its inappropriate actions again penalized him as it effectively took him off any sort of status for the period 1 April to 3 April 2005, thereby creating a debt with the Defense Finance and Accounting Service.  On his December leave and earnings statement he automatically had $462.62 withheld from his pay as a "debt payment."  Not only had he been illegally punished by his unit, its actions amending his orders created a debt that he would have to fight to recover.  His unit once again created a problem for itself because in order for any UCMJ action to be taken, a Soldier has to be on some type of orders.  His unit was forced to put him on State orders for the period covering 1-3 April, thereby canceling the debt that was created by its actions.

	g.  The applicant's career was seriously set back by his unit's covert actions revoking his promotion to SFC and the inappropriate UCMJ punishment.  While not turning in the ACU Gortex jacket to his chain of command was improper, his culpability in this entire ordeal is minimal.  He was stigmatized by his command and unit for his actions and was the subject of email jokes that were sent to various members of his unit.  In addition, he later learned the sergeant major sent out a unit-wide email stating the thief had been caught and announcing that it was the applicant.  According to the Vermont State Command Sergeant Major, two Soldiers received letters of reprimand for their actions.

	h.  The applicant volunteered to be deployed and was willing to accept responsibility for his actions at an Article 15 proceeding.  This proceeding must be declared void as pertinent information was withheld from the applicant about his promotion to SFC.  In addition, his command did not have UCMJ authority to impose the Article 15 and cannot retroactively create authority through the amendment of orders.

	i.  The applicant served successfully throughout his deployment and has been an excellent member of his Army National Guard unit to date.  He is currently serving his second deployment in Afghanistan.  He has been on long-term orders since the Fall of 2004 and has chosen to stay on active duty to help support the war efforts.  He has received excellent evaluations since starting active duty and he received the Bronze Star Medal for his bravery and exceptional merit while under fire and in his training efforts.  He was awarded the Combat Infantryman Badge, Army Commendation Medal, and North Atlantic Treaty Organization Medal.

	j.  On 1 October 2007, he received his 20-year letter notifying him of his eligibility for retired pay at age 60.  However, he continues to serve his country and has no plans of retiring in the near future.  In light of the circumstances surrounding his reduction in rank and Article 15 proceedings, combined with his meritorious and selfless service for 23 years, he respectfully asks that his Article 15 be set aside as his command did not have authority to impose it and cannot retroactively create such authority.  Further, it is void due to the command's actions covering up his promotion to SFC, a fact that would have changed his actions at the Article 15 proceedings.

	k.  The applicant is a devoted Soldier who is among the first to volunteer for deployments.  His career suffered a major setback when he had not one, but two ranks taken from him as a result of his command's actions.  Removing this Article 15 from his file will allow his career to progress as it should have, had this injustice not occurred.  He also respectfully requests his command's actions removing him from the promotion list to SFC be declared void, as he was not provided this information until he was talked into accepting Article 15 proceedings, thereby allowing him to continue with his deployment.

 3.  Counsel provides 21 enclosures outlined on page 6 of his statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard on 20 July 1987.  He was promoted to SSG on 8 May 2000.

2.  Counsel provided orders, dated 24 March 2005, which show the applicant was ordered to active duty as a member of his Reserve Component unit on 1 April 2005 (Title 10) in support of Operation Enduring Freedom.  His rank is shown as SSG on these orders.

3.  Counsel provided orders, dated 30 March 2005, which show the applicant was promoted to SFC effective 1 April 2005; however, these orders were revoked on 30 March 2005.

4.  A DA Form 2627, dated 3 April 2005, shows nonjudicial punishment (NJP) was imposed against the applicant for wrongful appropriation and disposition of government property.  His punishment consisted of a reduction to E-5.  The issuing commander (serving in Title 32 status) directed that the original DA Form 2627 be filed in the restricted section of the applicant's official military personnel file (OMPF).  The applicant elected not to appeal the Article 15.

5.  Vermont Army National Guard Orders 093-001, dated 3 April 2005, show he was reduced from SSG to SGT effective 3 April 2005.

6.  Counsel provided orders, dated 3 April 2005, which show the applicant was ordered to active duty as a member of his Reserve Component Unit on 1 April 2005 in support of Operation Enduring Freedom.  His rank is shown as SGT on these orders.

7.  Counsel provided orders which show the applicant was promoted to SSG effective 14 October 2005.

8.  The applicant served in Afghanistan from 9 July 2005 to 15 September 2006 and was released from active duty on 10 September 2007.

9.  He was promoted to SFC effective 22 September 2007.

10.  He was ordered to active duty on 10 March 2008 in support of Operation Enduring Freedom and was released from active duty on 28 July 2008.  He was ordered to active duty again on 16 January 2009 and released from active duty on 6 January 2010.

11.  Orders show he was reduced from SFC to SSG for inefficiency effective 29 March 2010.

12.  A DA Form 2627, dated 30 March 2010, shows NJP was imposed against the applicant for violating a lawful general regulation by wrongfully operating a transportation motor pool vehicle with a suspended driver's license.  His punishment consisted of a forfeiture of $1,742.50 (suspended).

13.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the policies and procedures for promotion and reduction of Army enlisted personnel.  Paragraph 7-4l states a Soldier is in a nonpromotable status and will not be selected, promoted, advanced, appointed to a higher grade, or laterally appointed to corporal, first sergeant, or command sergeant major when the Soldier is under a flag per Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag)) or has a circumstance that requires a flag.  The Soldier is in a nonpromotable status whether the flag is actually initiated and completed or not.

14.  Title 10, U.S. Code, section 802(a)(3), states the UCMJ does not apply to Soldiers when in Title 32 status.

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests the DA Form 2627 be removed from the applicant's personnel file.  The Article 15 is void because the commander had no jurisdiction over the applicant to take such an action.  Only a person subject to the UCMJ may offer an Article 15 to a Soldier placed in Title 10 status.  The issuing commander was still in Title 32 status.  When the applicant entered active duty, it effectively suspended his State status for purposes of imposing punishment.  Hence, the commander also had no jurisdiction to impose NJP under State law.  Accordingly, the DA Form 2627 imposed on 3 April 2005 should be voided and removed from his records.  In addition, his records should be corrected to show he was not reduced in grade on 3 April 2005.

2.  Counsel requests the applicant be retroactively promoted to SFC effective 1 April 2005 with all back pay and allowances.  However, since he was in a nonpromotable status and his unit had the authority to withhold his promotion based on his misconduct, there is insufficient evidence on which to grant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  voiding the DA Form 2627 imposed on 3 April 2005 and removing it from his OMPF and restoring all rights and privileges lost as a result of that NJP; and

	b.  revoking Vermont Army National Guard Orders 093-001, dated 3 April 2005.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a retroactive promotion to SFC effective 1 April 2005 with all back pay and allowances.



      _____________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)                                         AR20100019352



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ABCMR Record of Proceedings (cont)                                         AR20100019352



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