IN THE CASE OF:
BOARD DATE: 1 December 2011
DOCKET NUMBER: AR20110010652
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, that the punishment imposed by the 7 February 2009 nonjudicial punishment (NJP) be set aside, that his rank be restored to him, and that the DA Form 2627 be removed from the restricted portion of his Official Military Personnel File (OMPF).
2. The applicant states the proper procedures were not followed regarding the imposition of NJP under the provisions of Army Regulation 27-10 and the Uniform Code of Military Justice (UCMJ). Information was changed during sentencing because he notified the commander that he was going to violate Department of Defense (DOD) policy by requesting medical records. He goes on to state that due to this and other procedural errors the NJP should not have been valid because the outlined procedures of appeal and notification of decision on appeal process were not followed. He continues by stating the brigade commander was biased in his decision because he violated the Health Insurance Portability and Accountability Act (HIPAA) by going to the mental health office and disclosing information to the South Carolina Department of Social Service that he was seeing a mental health doctor. He further states he had filed congressional inquiries against the commander and his appeal should not have been processed until his inquiries had been processed to completion. However, the DA Form 2627 was processed and placed in his OMPF before the congressional inquiries were completed.
3. The applicant provides a copy of his Article 138 Complaint.
CONSIDERATION OF EVIDENCE:
1. The applicant was serving in the pay grade of E-6 in the Active Guard Reserve (AGR) Program at Fort Jackson, South Carolina when on 24 January 2009, the applicants commander notified him that he was considering whether he should be punished for failure to go to his place of duty, disobeying a lawful command from a superior commissioned officer, failure to provide adequate support for his family, and dereliction of duty.
2. The applicant did not demand trial by court-martial and elected a closed hearing. On 7 February 2009, the commander directed that he be reduced to the pay grade of E-5 and that he forfeit $564.68 per month for 2 months (suspended, to be vacated if not remitted before 24 March 2009). The imposing commander directed that the DA Form 2627 be filed in the restricted section of the applicants OMPF. The applicant appealed the punishment and provided additional documents with his appeal. His appeal was denied on 19 February 2009.
3. On 14 July 2009, the applicant filed a complaint of wrong under Article 138, UCMJ and Army Regulation 27-10 and contended that he qualified as a whistleblower.
4. On 2 June 2010, the Commanding General, U.S. Army Reserve Command dispatched a memorandum to the applicant informing him his request did not satisfy the requirements of Army Regulation 27-10 because there was no evidence he had attempted to resolve his perceived wrong using his chain of command. He was also informed he did not qualify for redress under the federal Whistleblower Statute.
5. Army Regulation 27-10, in effect at the time, states, in pertinent part, that the decision to file DA Forms 2627 on the performance or restricted fiche of the OMPF would be determined by the imposing commander at the time punishment was imposed. The filing decision of the imposing commander is final and was to be indicated in item 5, DA Form 2627.
6. Paragraph 3-37 of Army Regulation 27-10 provides the filing determination for the DA Form 2627 and associated documents. It provides, in pertinent part, that the restricted fiche of the OMPF is that portion of the OMPF that contains information not normally viewed by career managers or selection boards.
DISCUSSION AND CONCLUSIONS:
1. It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so. It also appears that the punishment was not disproportionate to the offenses for which he was charged and found guilty and that the NJP was properly filed in the restricted section of his OMPF, as directed by the imposing commander at the time punishment was imposed.
2. The applicants contention that his NJP was not processed in accordance with the applicable regulation has been noted; however, he has failed to show through the evidence submitted with his application and the evidence of record that such was the case.
3. It is also noted that the applicant had the option to demand trial by court-martial where he could have asserted his innocence before a jury of his peers and he elected not to do so. Therefore, it would be inappropriate to set aside the punishment at this late date without sufficient evidence to support such an action.
4. Accordingly, there appears to be no basis to grant the applicants 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.
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