IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110006633 


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 requests defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the service member's (SM's) previous request for removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), and restoration of his rank to staff sergeant (E-6).  As new issues, he requests the following:

* all back pay and allowances lost as a result of his reduction in rank
* retroactive special promotion board consideration to sergeant first class (E-7)
* a personal appearance before the Board

2.  Counsel states the Board's conclusion that partial or incomplete consultation with a defense attorney satisfies the Soldier's right to counsel under Army Regulation 27-10 (Military Justice), paragraph 3-18(c) is not only unfair, it is not supported by law.  Counsel states the Board erred when it found the SM's right to counsel was satisfied by an incomplete advisement by a Trial Defense Services (TDS) attorney.  Counsel states it is first necessary to establish that the SM's advisement with his TDS attorney was incomplete, which is established by the letter from the SM, dated 27 April 2009, and the letter from his former TDS attorney, dated 29 April 2009.  Counsel continues by stating:

* inherent in a right to counsel is an adequate opportunity to fully consult with that counsel
* it is legally improper to find that the SM was afforded such a right when even his TDS attorney states that no advice was given and the discussion was limited to the issues in the case
* no strategy was discussed, and the consequences of pleading or not pleading, perhaps the most fundamental function of legal counsel, were not discussed
* it was erroneous for the Board to find the SM's right to counsel had been satisfied when it clearly had not

3.  Counsel provides a copy of the Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 22 July 2010.  He also provides two memoranda for the Commander, 18th CSSB, COS Marez, Iraq, dated 27 April and 29 April 2009, both of which were considered during the previous review of the applicant's case.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the SM's case by the ABCMR in Docket Number AR20090018865, on 22 July 2010.

2.  Counsel provides new arguments that will be considered by the Board.

3.  The SM enlisted in the Regular Army on 28 November 1994, in pay grade       E-4.  He was promoted to pay grade E-5 on 18 March 1999 and pay grade E-6 on 1 April 2001.

4.  The SM accepted NJP on 22 April 2009, for:

* operating a vehicle while drunk
* assaulting a person in the execution of civilian law enforcement duties
* fleeing apprehension by driving away from a German police officer
* failing to obey a lawful order from a sergeant first class (E-7)
* being disrespectful in language towards an E-7

5.  In item 3 (Having been afforded the opportunity to consult with counsel, my decisions are as follows:) on the DA Form 2627 he received he elected:

* not to demand trial by court-martial
* to have a closed hearing
* 
to have a person speak in his behalf
* to present, in person, matters in defense, mitigation, and/or extenuation

6.  In item 4 (all matters presented in defense, mitigation and/or extenuation having been considered, the following punishment is imposed), the battalion commander acknowledged the SM had a closed hearing.  The following punishment was imposed:

* reduction to pay grade E-5
* a forfeiture of $1,414 pay for 2 months
* extra duty for 15 days

7.  The SM's battalion commander directed that the DA Form 2627 be filed on his performance fiche.  The battalion commander also advised the SM of his right to appeal within 5 calendar days. He was told that an appeal made after that date may be rejected as untimely.  In item 7 (Initial appropriate block, date, and sign), the SM elected not to appeal.  He signed and dated the DA Form 2627 on 22 April 2009.

8.  On 24 May 2009, the SM petitioned the ABCMR for removal of the DA Form 2627 from his Official Military Personnel File and restoration of his rank and grade to staff sergeant.  He indicated he:

* was demoted from E-6 to sergeant/E-5 without a proper trial or notification of the incident
* was not afforded the opportunity to be advised by TDS
* never received the packet of information related to the alleged offenses

9.  On 22 July 2010, the ABCMR denied the SM's petition based on the following discussion and conclusions:

* the Article 15 proceedings confirmed the imposing commander notified the SM of his intent to impose NJP action against him for the offenses
* he was advised of his right to consult with his TDS attorney
* in the SM's appeal to the Article 15 proceedings, he stated he did not complete his advisement with TDS which confirms he had previously been advised by TDS
* the evidence of record shows he did not demand a trial by court-martial, he requested a closed hearing
* it appears that the imposing commander determined the SM had committed the offenses and imposed the appropriate punishment
* 
the SM did not present compelling evidence in which to remove the Article 15 proceedings from his OMPF
* in the absence of evidence to the contrary, it must be presumed that the SM's reduction in rank was correct
* there is no basis for setting aside the reduction in rank and grade that resulted from the imposition of NJP or reinstating his rank
* the evidence of record does not support the claims made by the TDS Senior Defense Counsel

10.  Other than the ABCMR Record of Proceedings dated 22 July 2010, counsel submits no new evidence.  However, he argues that the Board's conclusion that partial or incomplete consultation with a defense attorney satisfies the Soldier's right to counsel under Army Regulation 27-10, paragraph 3-18(c) (Right to counsel), is not only unfair, it is not supported by law.  

11.  Counsel refers to the memorandum of the SM's former TDS attorney, dated 29 April 2009, in which he (the former TDS attorney) states "SGT R__ did not receive counseling by TDS prior to his hearing.  Because of SGT R__'s location, a former company commander, CPT L______, provided the initial notice.  While not required, normally this initial counseling is performed by the senior NCO.  It is required, however, that the Soldier be provided a copy of the DA Form 2627 with items 1 and 2 completed.  Army Regulation 27-10, paragraph 3-18.  This lead [sic] to some confusion during his appointment with TDS and, at the time, I believed that the initial reading had not occurred.  I discussed some of the issues and facts of SGT R__'s case with him, but did not provide the full counseling since he didn't have the form to document his elections."  In the memorandum, the SM's former TDS attorney further stated "SGT R__ was completely unprepared to make any "informed" decision regarding his presentation to LTC R_____.  We had discussed his case on a superficial level, but only to spot potential issues that weakened the government's case."

12.  Army Regulation 27-10, paragraph 3-18(c), states the Soldier will be informed of the right to consult with counsel and the location of counsel.  For the purpose of this chapter, counsel means the following:

	a.  a judge advocate (JA);

	b.  a Department of the Army civilian attorney; or

	c.  an officer who is a member of the board of a Federal court or of the highest court of a State, provided that counsel within the last two categories are acting under the supervision of either U.S. Army TDS or a staff or command JA.

13.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions have been noted.  They are not supported by the evidence of record.

2.  Counsel states the Board's conclusion that partial or incomplete consultation with a defense attorney satisfies the Soldier's right to counsel under Army Regulation 27-10, paragraph 3-18(c) is not only unfair, it is not supported by law. The evidence of record does not show that the Board ever made such a statement in the ABCMR Record of Proceedings, dated 22 July 2009.  The Board merely stated that the applicant was advised of his right to consult with counsel at TDS.  Regardless of what he and the former TDS attorney conversed about, he was provided the opportunity to consult with counsel in accordance with Army Regulation 27-10, paragraph 3-18(c). 

3.  The SM's former TDS attorney clearly states they discussed the SM's case on a superficial level, but only to spot potential issues that weakened the government's case.  The fact that the former TDS attorney believed the initial reading had not occurred may have had some impact on the advice he provided. However, it is not a basis for removing the Article 15 from the SM's OMPF.  

4.  It was the SM's responsibility to inform his former attorney of the circumstances surrounding the Article 15 proceedings.  His former attorney stated that he discussed some of the issues and facts with the SM, but did not provide the full counseling since he didn't have the form to document his elections.  The SM signed the DA Form 2627 on 22 April 2009 and he was provided a copy at the time.  His failure to present his former TDS attorney with the documentation that was necessary during his appointment is his own fault and not the fault of the imposing commander.

5.  The imposing commander determined that the SM committed the offenses, he imposed punishment, and he directed that the Article 15 be filed in the performance portion of the SM's OMPF.
6.  Counsel has failed to show an error or injustice in the previous decision made by the Board.  His contention that the Board's decision is unfair is not supported by the evidence of record.

7.  The SM's reduction in rank and the forfeiture of pay were the result of the Article 15 he received.  The punishment was proper; therefore, there is no justification for restoring his rank to staff sergeant, granting him back pay and allowances, or promotion consideration to the rank of sergeant first class by a promotion selection board.

8.  Based upon the facts in this case and the evidence provided, it was determined that no formal hearing was required.

9.  In view of the foregoing, counsel's request should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090018865, dated 22 July 2009.




      _______ _  _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)                                         AR20110006633



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006633



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1