IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110007978 


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, Uniform Code of Military Justice (UCMJ)), dated 9 September 2010, from his official military personnel file (OMPF) and restoration of rank and pay grade of sergeant (SGT), E-5, with back pay.

2.  The applicant also requested upgrade of his discharge, change in the narrative reason for his discharge, and a change in his reentry eligibility (RE) code.

3.  He states that his wife made a false statement and lied about the event that happened on 23 August 2010.  She only said those things because she was mad about Facebook, the internet, and being depressed and upset about being away from home.  She lied about him threatening her and hitting and choking her.  He never put his hands on her or talked to her loudly.  He should have had a separation board, but he did not and the commander stated that he did not have enough time in service but his retirement shows he did.  

4.  He also states the Article 15 he received on 9 September 2010 was unjust because the sworn statement made by private (PV2) WXXXXX, his wife, on 26 August 2010 was a false statement.  PV2 WXXXXX came back and made another statement on 9 March 2011 stating that she lied on the previous statement and that everything she previously wrote was not true.  She also sent an email on 8 October 2010 to his unit commander stating that he did nothing to get an Article 15.  He needs all of this done so he can join the service again.  

5.  He provides:

* 2006 Advancement Eligibility Status Roster
* NCO (Noncommissioned Officer) Evaluation Reports ending on 19 April 2009 and 19 April 2010
* Ten training completion certificates from 2008 to 2010
* 2005, 2008, and 2010 DD Forms 214
* Two DA Forms 2823 (Sworn Statement)
* Two DA Forms 4137 (Evidence/Property Custody Document)
* September 2010 Article 15
* Chapter 14-12c separation packet
* Email correspondence from PV2 WXXXXX, dated 8 October 2010

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no request, statements, or additional evidence in support of the applicant’s application.

CONSIDERATION OF EVIDENCE:

1.  With respect to the request for an upgrade of his general discharge to an honorable discharge, he submitted a DD Form 293 which is currently under review by the Army Discharge Review Board (ADRB) for that purpose.  If his request is subsequently denied by the ADRB, he may petition the Army Board for Correction of Military Records (ABCMR) for an upgrade of his discharge.  Therefore, the discharge upgrade, change in RE code, and change in the narrative reason for discharge, will not be discussed further in the Record of Proceedings. 

2.  The applicant's military records show he enlisted in the U.S. Army Reserve (USAR) on 15 October 2004.  He entered active duty for training (ADT) on 4 January 2005.  He completed training and he was awarded military occupational specialty 92Y (Unit Supply Specialist).  He was honorably released from ADT on 12 May 2005 and he was transferred to a Reserve unit.  

3.  He was ordered to AD in support of Operation Iraqi Freedom (OIF) and entered active duty on 29 May 2007.  He was honorably released from AD on 18 April 2008.  

4.  He was promoted to pay grade E-5 on 15 April 2008.

5.  He received an annual NCOER for the period 20 April 2008 through 19 April 2009 wherein he was given a rating of "Successful" and an "X" was placed in the "3" block for his overall performance and a rating of "Superior" and an "X" was placed in the "3" block for his overall potential for promotion and/or service in 
positions of greater responsibility.  

6.  He received an annual NCOER for the period 19 April 2009 through 19 April 2010 wherein he was given a rating of "Successful" and an "X" was placed in the "3" block for his overall performance and a rating of "Superior" and an "X" being placed in the "3" block for his overall potential for promotion and/or service in positions of greater responsibility.  

7.  He provided copies of ten certificates showing he successfully completed the training.

8.  He was again ordered to AD in support of OIF and entered AD on 30 March 2010.

9.  A DA Form 2823, dated 26 August 2010, shows a PV2 WXXXXX stated that she and the applicant had gotten into an argument over a personal matter.  The applicant broke her computer and had hit her a couple of times.

10.  A second DA Form 2823, dated 26 August 2010, shows Sergeant First Class TXXXXX stated that he was awake during the night due to noise coming from his neighbor’s room next door.  His neighbors were the applicant and his wife.  He heard that the argument was about the internet.  

11.  Two DA Forms 4137, dated 26 August 2010, show a pair of scissors and a folding black box cutter were taken into evidence.

12.  On 9 September 2010, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for unlawfully striking PV2 WXXXXX on the face with his hand, unlawfully choking, and wrongfully communicating a threat to use a knife on her.  He requested a hearing of the specifications.  He was found guilty of all specifications and it was directed the Article 15 be filed in the performance section of his OMPF.  Page 2 of the Article 15, which contains the punishment section, is not available, but apparently the punishment included a reduction in rank.

13.  In an email and statement, dated 8 October 2010, submitted to his company and battalion commanders and command, PV2 WXXXXX (his spouse) stated that:

   a.  She and her husband (applicant) got into an altercation on 23 August 2010 which led him to get in trouble.  He didn’t do anything that night but try to defend himself, try not to argue with her, and calm her down.  He did not want to argue or talk, but she kept pushing the issue with him.  
   
   b.  She didn’t tell the entire truth about what happened that night and was scared what was going to happen to her, so she made up a story about him, before he had the chance to make a statement, so that everyone would be on her side and believe her.  He never hit her, he is not a violent man, and she is sorry that everyone thinks that of him now.  All she wanted was to go home without any trouble.

	c.  She wrongly made a false statement in August against her husband, the applicant, who received an Article 15, from information on a false sworn statement.  She willfully would receive any punishment that was due to her, in hopes that all that information was corrected and justified due to her lying.

14.  On 26 October 2010, the commander who imposed the punishment set aside the forfeiture of $1,099 pay per month for two months and directed the Article 15 be filed on the restricted section of his OMPF.

15.  On 18 December 2010, the applicant was discharged for misconduct.

16.  Army Regulation 27-10 (Military Justice), paragraph 3-37(1)(a) specifies the decision to file the original DA Form 2627 on the performance or restricted portions in the OMPF will be made by the imposing commander at the time punishment was imposed.  Paragraph 3-28 states the punishment or any part or amount, whether executed or unexecuted, is set aside and all rights, privileges, or property affected by the portion of the punishment set aside are restored.  If all findings are set aside, then the Article 15 is set aside and removed from the Soldier’s records.  The example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  

17.  Army Regulation 27-10, paragraph 3-43, contains guidance on the transfer or removal of records of nonjudicial punishment (DA Form 2627) from the OMPF. It states application for removal of a DA Form 2627 from a Soldier's OMPF based on an error or injustice will be made to the ABCMR.  It further states that there must be compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

18.  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 the Army Personnel Qualification Record.  It also prescribes the composition of the OMPF.  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 the proper authorities listed in the regulation. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant accepted punishment under Article 15 for assault consummated by battery, choking, and wrongfully communicating a threat to PV2 WXXXXXX, his spouse.  On 8 October 2010, PV2 WXXXXX submitted an email to his company and battalion commander stating that she made a false statement against her spouse (applicant) because she was mad at him and he didn’t assault her.  

2.  After requesting a hearing he was found guilty of all the specifications.  The proceedings were found to also have been properly conducted under law and regulation and his punishment was found to be appropriate.  It appears the documentation submitted by his spouse recanting her allegations was taken into consideration as it was directed that the Article 15 be filed on the restricted section instead of the performance section of his OMPF.  However, it also appears the commander did not entirely believe his spouse’s recantation.

3.  The Article 15 does not currently appear on his OMPF, although his reduction was implemented.  However, there is an insufficient evidentiary basis to support granting the requested relief.  After considering the supporting documentation and the applicant's statement, he has not provided clear and convincing evidence that the punishment and reduction to pay grade E-4 was unjust, in whole, or in part, to support his request.

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)                                         AR20110007978





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ABCMR Record of Proceedings (cont)                                         AR20110007978



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