BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20100027845 


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:

* reinstatement to the rank/grade of sergeant first class (SFC)/E-7 in the Arizona Army National Guard (AZARNG)
* removal of the Arizona Nonjudicial Punishment (AZNJP) Form 1 (Record of Proceedings Under Article 26-1015, Arizona Code of Military Justice (ACMJ)), dated 1 July 2010, from his official military personnel file (OMPF)
* payment of special duty additional pay (SDAP) for the months of April, May, and June 2010 (recruiter pay)
* opportunity to compete for promotion to master sergeant (MSG)/E-8 at the earliest opportunity
* opportunity to have the Active Service Management Board (ASMB) be aware of his situation in order to be allowed to continue beyond 20 years 

2.  The applicant states:

* as a recruiter in the AZARNG, he tested a female in March 2010 for the ASVAB (Armed Services Vocational Aptitude Battery) test but she failed
* she alleged that he kissed her at the test site and sent her an inappropriate text message
* an investigation conducted by his chain of command recommended him for an Article 15; he received minimal legal support from his military counsel
* he was instructed not to communicate with his commander because he was processing his case
* during the June 2010 hearing, he was proven innocent based on the evidence provided; yet, he was punished based on his commander's recommendation with a suspended reduction in grade
* a few weeks later, his suspended punishment was vacated based on allegations that he coerced a subordinate to write a statement to help his case; this subordinate requested to see the chief of staff but she was refused; he was ultimately reduced to staff sergeant (SSG)/E-6
* his SDAP was taken away without any counseling but was later reinstated 
* he was directed to work in the S-1 shop and commuted 240 miles daily round trip to get to and from work
* he has done everything the chain of command asked him to do
* the female who initiated the allegations was allowed to enlist but she was ultimately discharged for being absent without leave, thus confirming her poor character
* he complained to the Inspector General but he was told that when he accepted the NJP, he gave his command the authority to do whatever they wanted
* he has had 19 years of flawless service and was on track to make 
MSG/E-8; he refuses to accept this injustice; he believes he is a victim of the good old boy system
* he later complained to the Inspector General but he never received a reply or received a copy of the investigation
* he later requested to see The State Adjutant General and ended up meeting with the Assistant Adjutant General but he did not support his contention
* everyone tells him nothing can be done but no one wants to tell him in writing what he did wrong or who can help him

3.  The applicant provides:

* AZNJP Form 1
* email exchange
* multiple sworn statements
* email exchange with his counsel
* revocation of suspension of reduction memorandum
* statement to the state chief of staff
* statement from his subordinate
* DA Form 1559 (Inspector General Action Request)
* self-authored biographical summary
* letter of recommendation


CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the Regular Army on 2 July 1991 and held military occupational specialty 11B (Infantryman).  He served through multiple reenlistments in a variety of stateside or overseas assignments.  He was discharged from active duty on 30 June 2004 and he enlisted in the AZARNG.

2.  He was ordered to full-time National Guard duty (FTNGD) on 7 March 2005 and he was assigned to the AZARNG Recruiting and Retention Command, Phoenix, AZ.  He:

* served through multiple extensions in the ARNG
* was awarded MOS 79T (Recruiting and Retention Noncommissioned Officer)
* was authorized SDAP in accordance with National Guard Regulation (NGR) 601-1 (Recruiting and Retention Resource Management), effective 3 April 2005
* was promoted to SFC/E-7 on 25 April 2006

3.  On or around 5 April 2010, he was reassigned to A Company, Recruiting and Retention Battalion, Phoenix, AZ, as he was pending investigation of several allegations.

4.  On 19 April 2010, the AZARNG published Orders 109-631 terminating the applicant's entitlement to SDAP, effective 5 April 2010.

5.  On 28 June 2010, at a closed hearing, while holding the rank of SFC/E-7, the applicant waived trial by a court-martial and accepted NJP under the provisions of Article 26-1015. Arizona Code of Military Justice (ACMJ) for:

* Failure to obey an order issued by his commander not to discuss an ongoing investigation against him except with authorized personnel
* Failing to obey a lawful order by wrongfully kissing an Army recruit
* Making a false official statement, with intent to deceive, regarding sending the Army recruit 10 text messages

6.  His punishment consisted of a written letter of reprimand to be filed in his OMPF for 1 year and a reduction to SSG/E-6 (suspended for 90 days).  The imposing commander directed the original AZNJP Form 1 be filed in the performance section of the applicant's OMPF.  The applicant elected not to appeal his punishment.

7.  On 10 August 2010, the imposing officer vacated the suspension of that portion of the punishment related to a reduction to SSG/E-6, effective immediately.  The imposing officer stated that:

* the applicant inappropriately influenced a subordinate to recant her sworn statement to his benefit
* an investigation of the subordinate's two statements (prior and after the NJP) revealed conflicting information
* the subordinate recanted her statement based on the applicant's request
* the subordinate admitted her second statement contained inaccuracies
* he coerced a junior Soldier into providing a statement that contained inaccuracies in an attempt to influence the investigation in his favor

8.  On 20 August 2010, the AZARNG published Orders 232-600 ordering the applicant's reduction from SFC/E-7 to SSG/E-6, effective 19 August 2010, by reason of misconduct, in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions).

9.  A review of his OMPF reveals the AZNJP Form 1 is in fact filed in the performance section of his OMPF.

10.  He submitted:

	a.  A statement, dated 19 November 2010, from his former supervisor who opines that the actions taken against the applicant can be considered a form of reprisal and it remains unclear why the applicant was punished.  He also comments on the high volume of UCMJ actions processed throughout the command and that the leadership at times pre-determined guilt of those who were alleged to have committed any violations.  He concludes that the reduction was unwarranted and it was based on meritless accusations of coercion after the investigation had closed. 

	b.  Email exchange with the father of the recruit who alleged the applicant's misconduct. 

	c.  Multiple sworn statements from various individuals involved in the investigation or witnessed the actions that occurred.  Some of the witnesses state that neither the misconduct nor the coercion occurred. 

	d.  Email exchange between the applicant and the chain of command regarding a copy of the investigation.

	e.  A letter, dated 25 May 2010, from a former military attorney who raised several issues and essentially requested the applicant's chain of command provide him with appropriate counsel.

	f.  Email exchange between the applicant and military counsel advising him to seek a meeting with the State chief of staff.

	g.  Statement, dated 19 August 2010, from the applicant to the chief of staff denying any coercion by him.

	h.  DA Form 1559, dated 30 August 2010, alleging procedural errors and abuse of rights with the investigation and the resulting NJP.

	i.  Self-authored biographical summary, highlighting his service, assignments, education, awards and decorations, promotions, and other personnel information.

11.  An advisory opinion was obtained from the NGB in the processing of this case.  An NGB official recommended disapproval of the applicant's request.  He restated the applicant's contention and stated that the applicant was advised of his right to appeal the results of his NJP but he elected not to do so.  In accordance with Arizona State Legislature 26-1015 a person who is punished under this article and who considers his punishment unjust or disproportionate to the offense may appeal, through the proper channel, to the next superior authority. The appeal shall be promptly forwarded and decided, but the person punished may be required in the meantime to undergo the punishment adjudged.  Appeals must be submitted in writing within 5 calendar days of the imposition of the NJP or the right to appeal shall be waived in the absence of good cause shown.  For unknown reasons, the applicant elected not to rebut or appeal the charges against him.

12.  He was provided with a copy of this advisory opinion but he did not respond.

13.  Title 26 of the Arizona State Legislature Revised Statutes provides for Military Affairs and Emergency Management.  It consists of various chapters, each with several articles and/or sub-sections.  Chapter 1 pertains to Emergency and Military Affairs and chapter 9 pertains to the Arizona Code of Military Justice.

	a.  For example, chapter 1, Article 3, pertains to the National Guard and Article 4 deals with the State Military Law.

	b.  Chapter 9 consists of Articles 1 through 11.  Each article has sections or paragraphs and/or sub-sections:

		(1)  Article 1, paragraph 26-1002 – persons subject to the code:  The following persons are subject to the code: members of the National Guard; all other persons lawfully ordered to duty with the National Guard from the dates they are required to serve by the terms of the order or other directive calling them into service.

		(2)  Article 3, paragraph 26-1015 – commanding officer, nonjudicial punishment:

		(a)  Sub-section A:  Under rules the governor adopts and under such additional rules as prescribed by the Adjutant General, limitations may be placed on the powers granted by this chapter with respect to the kind and amount of punishment authorized, the categories of commanding officers and warrant officers exercising command authorized to exercise those powers, the applicability of this chapter to an accused who demands trial by court-martial and the kinds of courts-martial to which the case may be referred on such a demand. Punishment may not be imposed on any member of the National Guard under this chapter if the member has, before the imposition of such punishment, demanded trial by court-martial in lieu of such punishment.  Similar rules may be prescribed with respect to the suspension of authorized punishments.  If authorized by rules of the Adjutant General, a commanding officer exercising general court-martial jurisdiction or an officer of general flag rank in command may delegate his powers under this article to a principal assistant.

		(b)  Sub-section B:  Subject to subsection A, any commanding officer, in addition to or in lieu of admonition or reprimand, may impose one or more of the following disciplinary punishments for minor offenses without the intervention of a court-martial:

		1  On officers of his command:  (a) restriction to certain specified limits, with or without suspension from duty, for not more than 30 consecutive days; (b) if imposed by the governor, the adjutant general or a general officer in command:  (i) arrest in quarters for not more than 30 consecutive days; (ii) forfeiture or a fine in an amount of not more than fourteen drill periods; (iii) restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days; and (iv) detention of not more than one-half of 1 month's pay per month for 3 months.

		2  On other personnel of his command:  (a) correctional custody for not more than seven consecutive days; (b) forfeiture or fine in an amount of not more than seven drill periods; (c) reduction to the next inferior pay grade, if the grade from which the person demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction; (d) extra duties, including fatigue or other duties, for not more than 14 consecutive days; (e) restriction to certain specified limits, with or without suspension from duty, for not more than 14 consecutive days; (f) detention of not more than 14 days pay; (g) if imposed by an officer of the grade of major or above:  (i) correctional custody for not more than 30 consecutive days; (ii) forfeiture or fine in an amount of not more than fourteen drill periods; (iii) reduction to the lowest or any intermediate pay grade, if the grade from which the person is demoted is within the promotion authority of the officer imposing the reduction or any officer subordinate to the one who imposes the reduction, but an enlisted member in a pay grade above E-4 may not be reduced more than two pay grades; (iv) extra duties, including fatigue or other duties, for not more than 45 consecutive days; (v) restriction to certain specified limits, with or without suspension from duty, for not more than 60 consecutive days; and/or (vi) detention of not more than one-half of 1 month's pay per month for 3 months.

		(c)  Sub-section C is not applicable.

		(d)  Sub-section D:  An officer in charge may impose on enlisted members assigned to the unit of which he is in charge punishments authorized under subsection B, paragraph 2, as the governor specifically prescribes by rule.

		(e)  Sub-section E:  The officer who imposes a punishment authorized in subsection B or his successor in command may suspend probationally, at any time, any part or amount of the unexecuted punishment imposed and may suspend probationally a reduction in grade or a forfeiture imposed under subsection B, whether or not the punishment is executed.  In addition, he may remit or mitigate, at any time, any part or amount of the unexecuted punishment imposed and may set aside in whole or in part the punishment, whether executed or unexecuted, and restore all rights, privileges and property affected.  He may also mitigate reduction in grade to forfeiture or detention of pay.  If mitigating an arrest in quarters to restriction, a correctional custody to extra duties or restriction, or both, or extra duties to restriction, the mitigated punishment shall not be for a greater period than the punishment mitigated.  If mitigating forfeiture of pay to detention of pay, the amount of the detention shall not be greater than the amount of the forfeiture.

		(f)  Sub-section F:  A person who is punished under this article and who considers his punishment unjust or disproportionate to the offense may appeal, through the proper channel, to the next superior authority.  The appeal shall be promptly forwarded and decided, but the person punished may be required in the meantime to undergo the punishment adjudged.  The superior authority may exercise the same powers with respect to the punishment imposed as may be exercised under subsection E by the officer who imposed the punishment.  Before acting on an appeal from a punishment of arrest in quarters for more than 7 days, correctional custody for more than 7 days, forfeiture of more than 7 days' pay, reduction of one or more pay grades from the fourth or a higher grade, extra duties for more than 14 days, restriction for more than 14 days or detention of more than 14 days' pay, the authority who is to act on the appeal shall refer the case to a judge advocate for consideration and advice and may so refer the case on appeal from any punishment imposed under subsection B.

		(g)  Sub-section G is not applicable.

		(h)  Sub-section H:  The Adjutant General, by rule, may prescribe the form of records to be kept of proceedings under this section and may also prescribe that certain categories of those proceedings shall be in writing.

		(3)  Article 10, paragraph 26-1092 – failure to obey order or rule.  Any person who is subject to this chapter and who violates or fails to obey any lawful general order or rule having knowledge of any other lawful order issued by a member of the National Guard, which it is his duty to obey, fails to obey the order or is derelict in the performance of his duties shall be punished as a court-martial may direct.

		(4)  Article 10, Paragraph 26-1107 – false official statement.  Any person who is subject to this chapter and who, with intent to deceive, signs any false record, return, rule, order or other official document, knowing it to be false, or makes any other false official statement knowing it to be false, shall be punished as a court-martial may direct.

		(5)  Article 11, paragraph 26-1138 – complaints of wrong.  Any member of the National Guard who believes himself wronged by his commanding officer, and who, on application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the general officer in command over the officer against whom it is made.  The general officer in command shall examine the complaint and take proper measures for redressing the wrong complained of, and he shall, as soon as possible, send to the adjutant general a true statement of that complaint and the proceedings on the complaint.

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of enlisted personnel.  Chapter 7 provides for promotion and reductions of enlisted members of the ARNG and chapter 10 provides for the management of reductions.

	a.  Paragraph 7-3 states the State Adjutant General is the convening and promotion authority for all promotion boards to Sergeant through Sergeant Major (SGM).  They may delegate this authority to their assistant Adjutant General (Army) or Deputy Commander, Joint Forces Headquarters.  They also may delegate promotion authority to subordinate commanders in command positions authorized grade of colonel or higher for promotion to SFC through SGM.

	b.  Paragraph 7-4 states a Soldier is in a non-promotable status when the Soldier is under a flag or has a circumstance that requires a flag.  The Soldier is in a non-promotable status whether the flag is actually initiated and completed or not, for example, for completion of processing and punishment under Article 15, UCMJ.

	c.  Paragraph 10-1(b) states a reduction board is required for Soldiers in the grade of SGT through SGM for any reduction for misconduct (civil conviction) under paragraph 10-3, of this regulation, (except under table 10-2) and for inefficiency under paragraph 10-5, of this regulation.  Board appearance, however, may be declined in writing, which will be considered as acceptance of the reduction board’s action.

	d.  Table 10-2 provides for the rules for reduction by reason of misconduct and outlines the disposition of various scenarios.

	e.  Paragraph 10-12 states when an Article 15 reduction is accomplished for misconduct and the Article 15 was directed to be filed on the restricted portion of the OMPF, a DA Form 4187 will be prepared by the battalion S-1 for permanent filing in the military personnel file to substantiate the reduction.  The DA Form 4187 will not contain the reason for the Article 15.  The DA Form 4187 will be removed and forwarded to OMPF when the Soldier is promoted to SGT or higher.  When a reduction is for misconduct under the UCMJ, a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) is prepared per Army Regulation 27-10 (Military Justice).

	f.  Paragraph 10-13 (Effective Date of Reduction) states a reduction by NJP, if not suspended, is effective the date the commander imposing the punishment signed below the NJP form.  If a suspension of the rank reduction is vacated, the reduction effective date in the grade to which the Soldier was reduced as a result of the vacation action is the date the punishment was originally imposed, not the date the suspended punishment was vacated.

15.  Army Regulation 600-20 (Command Policy) prescribes the policies and responsibilities of command, which include the well-being of the force, military discipline, and conduct, the Army Equal Opportunity Program, and the Army Sexual Assault Victim Program.  Paragraph 4-15 provides for prohibited relationships.  Sub-paragraph 4-15b applies to any relationship between permanent party personnel assigned or attached to the U.S. Army Recruiting Command and potential prospects, applicants, members of the Delayed Entry Program, or members of the Delayed Training Program not required by the recruiting mission is prohibited.  This prohibition applies to U.S. Army Recruiting Command personnel without regard to the unit of assignment of the permanent party member and the potential prospects, applicants, Delayed Entry Program members, or Delayed Training Program members.

16.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by selected agencies such as the Army Board for Correction of Military Records (ABCMR).

DISCUSSION AND CONCLUSIONS:

1.  The applicant, as a recruiter with the AZARNG, had a female recruit tested in March 2010 for entry into the ARNG.  The female recruit accused him of inappropriate behavior and text messages.  He was investigated and recommended for State NJP by his chain of command.  His punishment consisted of a suspended reduction to SSG/E-6.

2.  While under suspension, his chain of command determined he violated the State military justice code by inappropriately influencing a subordinate to recant her sworn statement to his benefit.  Accordingly, his suspended punishment was vacated and he was ultimately reduced to SSG/E-6 on 19 August 2010 and the State NJP was filed in his OMPF.  By State law, the imposing officer had the authority to reduce him to SSG via NJP.  Reduction boards are not required for NJP.  The imposing officer exercised his authority and ordered the applicant's reduction.

3.  The imposing officer also imposed a punishment of a letter of reprimand to be filed for a minimum of 1 year in the applicant's OMPF.  Only general officers may direct such action.  However, a memorandum of reprimand, given as punishment as part of the NJP is filed wherever the NJP is directed.  Since the NJP was filed in the OMPF, the reprimand is also filed but the filing cannot be for a set period.  In any case, the memorandum of reprimand is not filed on his OMPF.

4.  Nevertheless, there is no provision in the Army Regulation 600-8-104 to file a State NJP in the OMPF.  NJP under the provisions of Article 15 of the UCMJ is authorized for filing.  However, this is not the case here.  This is a State NJP, not governed under the UCMJ.  While there is no reason to set aside the punishment, the State NJP form should be removed from his OMPF.  

5.  The applicant's SDAP was terminated effective 5 April 2010.  On that date, he was under investigation, flagged, and was no longer performing the duties that authorized him SDAP in the first place.  Since he was moved from his duties as a recruiter, this was the appropriate action.  In any case, in his 29 April 2011 memorandum to the Board, he indicated that the command corrected his SDAP which rendered this issue moot.

6.  Because the evidence shows the applicant was appropriately reduced to SSG, there is no basis for giving him an opportunity to compete for promotion to MSG/E-8 until he is again promoted to SFC and serves the appropriate amount of time in that grade.  

7.  As for an opportunity to have the Active Service Management Board (ASMB) be aware of his situation in order to be allowed to continue beyond 20 years, since the applicant has served for more than 20 years, the issue is moot.

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 was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the Arizona Nonjudicial Punishment (AZNJP) Form 1 (Record of Proceedings Under Article 26-1015, Arizona Code of Military Justice (ACMJ)), dated 1 July 2010, from his official military personnel file.


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:

* reinstatement to the rank/grade of sergeant first class/E-7 in the AZARNG
* opportunity to compete for promotion to master sergeant/E-8 at the earliest opportunity
* opportunity to have the Active Service Management Board (ASMB) be aware of his situation in order to be allowed to continue beyond 20 years 



      ________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)                                         AR20100027845



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ABCMR Record of Proceedings (cont)                                         AR20100027845



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