IN THE CASE OF:	  

		BOARD DATE:  19 January 2012

		DOCKET NUMBER:  AR20110008541 


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:

   a.  removal of a July 2009 DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) and all associated records pertaining thereto from his official military personnel file (OMPF); 

   b.  restoration of his rank to staff sergeant (SSG)/pay grade E-6; and
   
   c.  back pay to June 2009. 
   
2.  He states:

   a.  he provided documentation to his chain of command showing that he checked into a Department of Veteran Affairs (VA) hospital emergency room on 
8 June 2009;
   
   b.  he called each individual in his telephone records the next day; and 
   
   c.  his military attorney did provide matters in his defense.
   
3.  He provides:

	a.  memoranda from:

   (1)  352d Combat Support Hospital, dated 2 May and 14 July 2009, respectively;  

   (2)  U.S. Trial Defense Service, dated 30 June 2009; and 

   (3)  the Office of the Deputy Chief of Staff, G-1, dated 27 September 2011.

   b.  DA Form 1610 (Request and Authorization for TDY (temporary duty)), dated 8 June 2009;

   c.  two medical documents from VA Palo Alto Health Care System, dated 
10 June and 13 July 2009, respectively;  
   
   d.  DA Form 4856 (Developmental Counseling Form), dated 9 June 2009;
   
   e.  Standard Form (SF) 600 (Chronological Record of Medical Care), dated 
10 June 2009;
   
   f.  DD Form 689 (Individual Sick Slip), dated 10 June 2009
   
   g.  Sprint telephone bill, dated 30 June 2009; 
   
   h.  DA Form 2627, dated 12 July 2009; 
	
   i.  Email, dated 19 August 2009; 

   j.  Memorandum of Record, dated 20 August 2009;

   k.  Leave and Earnings Statement (LES), dated October 2009; 

   l.   an undated supporting statement; and 
   
   m.  a MapQuest document.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he initially enlisted in the Regular Army on 
11 February 1992 and was honorably discharged on 23 June 1999.  While subsequently serving in the U.S. Army Reserve, he was promoted to SSG on 
10 September 2004 and was ordered to active duty in support of the Active Guard Reserve (AGR) program on 1 September 2008.

2.  He submitted a memorandum from the 352d Combat Support Hospital, Oakland, CA, dated 2 May 2009, Subject:  Letter of Instruction for Annual Training – Pacific 2009, which stated the unit would deploy to Fort Hunter Liggett, CA for training on 6 June 2009.

3.  He submitted an email, Subject:  Defense Travel System (DTS) Profile Worksheet, dated 8 June 2009, requesting that he fill the worksheet out for input into DTS.

4.  He submitted a DD Form 1610, dated 8 June 2009, showing he was to proceed on 9 June 2009:

* from:  Residence:  Moffett, CA
* to:  Fort Hunter Liggett, CA
* return:  Residence  Moffett, CA

5.  He stated he was told to report to Oakland, CA by the Colonel.

6.  He submitted an un-notarized, undated, and handwritten statement in which he indicated he was seen at the VA hospital in Palo Alto on 8 June 2009 at
2117 hours and was discharged on 9 June 2009, at 0730 hours.  He also stated that it would take 51 minutes to arrive at the Headquarters in Oakland from the hospital and he arrived there at 0830 hours.

7.  He submitted discharge instructions from the VA Palo Alto Health Care System, prepared on 9 June 2009, at 0636 hours, which shows he was seen in the emergency room.  The document contains the handwritten entry 10 June 2009, 10 a.m.

8.  He submitted a DA Form 4856, dated 9 June 2009, which stated he was counseled for displaying inappropriate actions and behavior regarding his attendance at the extended combat training to be conducted at Fort Hunter Liggett on:

* 8 June 2009 for refusing to follow instructions regarding following orders
* 9 June 2009 for refusing to answer if he would be at the Oakland Airbase at 0800 hours and speaking in an argumentative manner 

9.  He submitted an SF Form 600, dated 10 June 2009, in which he stated "I was seen by the VA doctor yesterday (Moffett, Field, CA) for difficulty in swallowing for the 3 days. 

10.  He submitted a DD Form 689, dated 10 June 2009, which stated he had a "swallow gland" that needed following up.  This document shows that he was returned to duty.  

11.  He submitted a document, dated 11 June 2009, which shows he acknowledged receipt of a relief of cause Noncommissioned Officer Evaluation Report directed by an official other that the Rater or Senior Rater.

12.  On 18 June 2009, he was informed that he was being considered for non-judicial punishment (NJP) for on or about 9 June 2009, without authority failure to go at the time prescribed to his appointed place of duty, the unit staging area for extended combat training, Oakland Airbase, Oakland, CA at 0800 hours.

13.  The applicant was provided a period of 48 hours to consult with defense counsel and to decide what he wanted to do.  The DA Form 2627 indicates that he elected:

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

14.  He submitted a memorandum from the United States Army Trial Defense Service, Region West, Fort Irwin Field Office, Subject:  the applicant, Field Grade Article 15 Matters in Defense, dated 30 June 2009, stated that his Article 15 initiated on 18 June 2009 and should be withdrawn for legal insufficiency due to:

	a.  lack of jurisdiction:

		(1)  in accordance with Amy Regulation 27-10 (Military Justice) paragraph 3-8a which limits a commander’s authority to impose punishment under Article to military personnel under his command was legally insufficient and should be withdrawn because he was not in the hospital commander’s command and as a result, he had no authority to impose punishment under Article 15; and

		(2)   while the applicant fell under the hospital command during the
extended combat training at the time of the alleged conduct, they were no longer assigned to the same unit.

	b.  lack of impartiality:

		(1)  Army Regulation 27-10, paragraph 3-13 requires commanders to
exercise their authority to impose nonjudicial punishment “in an absolutely fair and judicious manner”;

		(2)  a seven page memorandum composed by the hospital command was
replete with indications that he was too situationally and emotionally vested in the Article 15 proceedings to meet the burden of impartiality. 

	c.  insufficient evidence:

		(1)  Army Regulation 27-10 paragraph 3-18l states that the evidentiary
standard at the Field Grade Article 15 proceedings is the same as that of a court-martial:  beyond reasonable doubt; and

		(2)  the evidence against the applicant, was brief, conclusory, and
contained entirely in the commander’s own unsigned memorandum fell short of that standard.

15.  He submitted a copy of a Sprint telephone bill in which he indicated he spoke with the named persons associated with those numbers on 9 and 10 June 2009.

16.  On 12 July 2009, in a closed hearing, the hospital commander imposed a reduction in grade to sergeant (SGT)/E5 and 14 days of extra duty, and a forfeiture of $1,414.00 pay for 2 months of which $1,000.00 per month was suspended.  The imposing commander directed filing of the DA Form 2627 in the performance section of his OMPF.  The applicant was advised of his right to appeal within 5 calendar days.

17.  The imposing official directed the original DA Form 2627 be filed in the performance section of his OMPF.  He initialed the block indicating that he "would appeal and submit additional matters."  Block 11 (Allied Documents and/or Comments) of his DA Form 2627 lists the following:

* Memorandum for Record
* AGR Orders

18.  He submitted an unnotarized handwritten note from the Palo Alto Health Center System, dated 13 July 2009, which stated he had been seen in the emergency room on 8 June and 9 June 2009.

19.  The applicant was advised of his right to appeal to the commander of the
2d Medical Brigade within 5 calendar days.  On 17 July 2009, his appeal was partially denied, the reduction to SGT was retained, and the forfeiture of $1,414.00 per month for two months was dismissed.

20.  He submitted an email, dated 19 August 2009, which addressed a conversation between him and the appeal authority regarding the reason for his NJP and future expectations.

21.  He submitted a memorandum for record from the executive assistant, 
2d Medical Brigade, dated 20 August 2009, in which she stated that she was told to create a profile and authorization for departure for the applicant on 9 June 2009 since he could not do it himself because he did not have access to a computer. 

22.  He submitted an LES, dated October 2009, which shows he incurred an $864.00 debt to the U.S. due to a repayment of an advance and a grade change.

23.  He submitted a memorandum from the Chief, Enlisted Career Systems Division, Office of the Deputy Chief of Staff, G-1, Subject:  Involuntary Separation of the Applicant, Under the Provisions of Army Regulation 635-200, Chapter 
14-12b (Patterns of Misconduct) which states that the requested separation action was found to be legally objectionable because his chain of command had failed to adequately counsel him and afford him an opportunity to correct his deficiencies.  

24.  He submitted an unsigned and undated supporting statement in his behalf.

25.  He submitted a copy of a MapQuest trip log which shows the estimated travel time from Palo Alto, CA to Oakland, CA was 51 minutes. 

26.  Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual official personnel files.  The regulation 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.  Claims that an Article 15 is unjust will be adjudicated by the Army Board for Correction of Military Records.

27.  Army Regulation 27-10 provides guidelines for the distribution and filing of the DA Form 2627 and allied documents.  The regulation states the original DA Form 2627 will include as allied documents all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.  It further states that the restricted section is that portion of the OMPF that contains information not normally viewed by career managers or selection boards except as provided in Army Regulation  600-8-104 or specified in the Secretary of the Army's written instructions to the selection board. Allied documentation transmitted with the original or copies of DA Forms 2627, where filed with any of these forms, will be considered to be maintained separately for the purpose of determining the admissibility of the original or copies of DA Forms 2627.

28.  Army Regulation 27-10, paragraph 3–8a states that for the purpose of Article 15, military personnel are considered to be “of the command” of a commander if they are:

a. assigned to an organization commanded by that commander; 

b. affiliated with the command (by attachment, detail, or otherwise) under
conditions, either expressed or implied, that indicate that the commander of the unit to which affiliated and the commander of the unit to which they are assigned are to exercise administrative or disciplinary authority over them; and 

c. to determine if an individual is of the command of a particular
commanding officer, refer first to those written or oral orders or directives that affect the status of the individual.  

29.  Army Regulation 27-10, paragraph 3-13 states that the authority to impose nonjudicial punishment charges a commander with the responsibility of exercising the commander’s authority in an absolutely fair and judicious manner.

30.  Army Regulation 27-10, paragraph 3-18l states that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s). If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier. 

31.  Army Regulation 27-10 defines the term setting aside and restoration. Paragraph 3-28 states that this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  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 that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that the Article 15, dated 18 February 2010, be rescinded, he be restored to his former rank, and back pay to July 2009.

2.  Notwithstanding the applicant's legal assistance attorney's opinion, the evidence of record confirms the commander administering the Article 15 proceedings determined during a closed Article 15 hearing, after considering all the evidence, that the applicant committed the offense in question.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the charged offense(s).  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing.

3.  It is the imposing commander’s function to reexamine issues of guilt or innocence under Article 15 of the UCMJ and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was provided an opportunity to consult with a defense attorney, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels.

4.  The applicant did not provide convincing evidence that shows the imposing commander denied his the right to speak or bring issues in his defense during the proceedings.  The arguments he presents are not sufficient to change the determination of guilt made by the commander.

5.  The applicant's dissatisfaction with the outcome of this Article 15 does not invalidate it.  He violated the UCMJ and he was punished for it.  There is neither an error nor an injustice and there is no reason to set the Article 15 aside or to restore his rights and privileges.

6.  His NJP proceedings were conducted in accordance with law and regulation and the Article 15 and allied documents are properly filed in the performance portion of his OMPF as directed by the imposing commander.  The evidence shows each of these documents was properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  There is no evidence of an error or an injustice.

7.  The purpose of maintaining the OMPF is to protect the interests of the Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.

8.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant failed to submit evidence that the documents in question that are filed in the performance section of his OMPF are untrue or unjust.  Therefore, they are deemed to be properly filed and should be retained in his OMPF.  Therefore, there is no basis for granting the requested relief.

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)                                         AR20100021898





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ABCMR Record of Proceedings (cont)                                         AR20110008541



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