BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100021679 


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, set aside of nonjudicial punishment (NJP) imposed under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

2.  The applicant states:

	a.  while assigned for duty in Haiti, he received NJP imposed by a general officer that included a letter of reprimand, reduction to pay grade E-4, forfeiture of $1099.00 a month for 2 months, and recommendation for separation;

	b.  it is his belief he was treated unfairly, unjustly, and severely punished;

	c.  on 15 April 2010, having been approached by six young Haitian nationals requesting money and food, in an attempt to defend himself and maintain possession of his weapon, he first slapped the older boy's hands and smacked him in the back of his head when the older boy snatched him from behind and tried to take his weapon away from him;

	d.  that after walking away the applicant noticed a Haitian guard about 15 feet away witness him slapping the boy, but the guard did not see the whole incident;

	e.  that 10 minutes after reaching the embassy, he reported the incident to two gate guards who were American Soldiers;

	f.  their chauffer who was parked 10 feet away witnessed the entire incident;

	g.  that although legal representation was requested, a Trial Defense Services (TDS) officer informed him adequate consultation could not be achieved because of his location and, as a result, he had no legal representation;

	h.  that throughout the investigation, his witnesses, the driver and gate guards, were never interviewed;

	i.  that character reference statements provided by his company commander, battalion commander, and other colonel's statements were disregarded; and

	j.  it his belief that the facts of his case were ignored due to its sensitive nature and the possible political ramifications that could have resulted from the incident.

3.  The applicant provides an indexed list of documents included with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 18 February 2003 and was trained in military occupational specialty 56M (Chaplain Assistant). 
He last reenlisted on 17 October 2008 for a period of 6 years.

2.  On 22 April 2010, the applicant's commander approved the findings of a report of investigation and found there was sufficient evidence to substantiate the findings that the applicant committed an unjustified and unauthorized act of assault consummated by battery upon a Haitian national.

3.  On 27 April 2010 while serving as a sergeant with the 377th Theater Sustainment Command (TSC), Joint Task Force (JTF)-Haiti, his commanding general [a major general/O-8] notified the applicant he was considering whether the applicant should be punished under Article 15, UCMJ, for:

	a.  unlawfully striking another person repeatedly on the face and head with his hands and pushing him to the ground and

	b.  by reaching for, exposing, and touching his M-9 pistol, an unloaded firearm, while approaching him.

4.  On 29 April 2010, the applicant elected not to demand a trial by court-martial and instead chose for the matter to be handled by the Commander, 377th TSC, JTF-Haiti, at an open hearing and to present matters in defense, mitigation, and/or extenuation.  He also indicated he did not request a person to speak on his behalf.

5.  On 29 April 2010, the Commander, 377th TSC, JTF-Haiti, imposed NJP consisting of a reduction to E-4, forfeiture of $1099.00 pay for 2 months, and a written reprimand.  [It did not include a recommendation for separation.]  The applicant elected to appeal the punishment without submitting additional matters and signed a DA Form 2627 confirming this election on 29 April 2010.  The commander directed the Article 15 be filed in the performance section of the applicant's official military personnel file (OMPF).  However, it is not currently filed in his OMPF.

6.  On 29 April 2010, 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.

7.  On 29 April 2010, the Commanding General, U.S. Army South, the appellate authority, denied the applicant's appeal.  On 29 April 2010, the applicant acknowledged the action taken on his appeal.

8.  On 30 April 2010, the applicant was issued a punitive letter of reprimand for his lack of judgment, integrity, and composure by assaulting a Haitian national minor, a 16-year old male, during Operation Unified Response, a humanitarian mission.

9.  On 7 May 2010, the applicant appealed the punishment and submitted additional matters.  In his appeal he indicates he traveled from Haiti to Fort Bliss, Texas, to work on his appeal where he had the first opportunity to work with his counsel on 5 May 2010.

10.  On 8 May 2010, the Commanding General, U.S. Army South, informed the applicant that although only one appeal is authorized in accordance with Army Regulation 27-10 (Military Justice), he considered the additional matters and found no reason to overturn the denial of his appeal.

11.  As of 22 March 2011, the applicant's master military pay account (MMPA) shows he is currently serving on active duty.

12.  The applicant's ERB shows he has an expected expiration of term of service (ETS) date of 16 October 2014 in section III (Service Data).

13.  Army Regulation 27-10 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.

13.  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.

14.  Paragraph 3-18 of Army Regulation 27-10 states the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of a matter under the provisions of Article 15 of the UCMJ.  The Soldier will be informed of his right to consult with counsel and the location of counsel.  Before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.

15.  Paragraph 3-28 of Army Regulation 27-10 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states 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.

16.  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.

17.  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 his NJP received under the provisions of Article 15 of the UCMJ should be set aside.

2.  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.

3.  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 by the imposing commander.

4.  The applicant contends he could not receive adequate consultation by counsel during the NJP process because of geographical restraints and thus had no legal representation.  By regulation, a Soldier will be informed of his right to consult with counsel and the location of counsel.  This does not require face-to-face consultations with counsel, but gives the right to consult counsel before making a decision whether to accept NJP.

5.  The evidence of record confirms the applicant acknowledged he consulted with counsel and worked on his appeal.  The appellate authority considered his second appeal but, nonetheless, upheld the punishment.  Accordingly, if there was any possible error regarding the applicant having the opportunity to consult with counsel, it was remedied during his second appeal when he met with TDS counsel.

6.  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.  In addition, the appellate authority considered a second appeal of the NJP submitted by the applicant beyond that which was authorized by regulation.  Therefore, absent any clear and convincing new evidence of a clear injustice, there is an insufficient evidentiary basis to support a setting aside the NJP action in question.

7.  Finally, the evidence of record confirms the applicant's NJP did not include a recommendation for separation.  The evidence of record does confirm he is currently serving on active duty as evidenced by his MMPA, and his ERB shows he has an expected ETS of 16 October 2014.  The applicant provided no other evidence that he is pending involuntary separation action.  As a result, his request to terminate any separation proceedings against him is unfounded.  Additionally, it would be premature for the Army Board for Correction of Military Records to review an incomplete personnel action.

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)                                         AR20100021679



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ABCMR Record of Proceedings (cont)                                         AR20100021679



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