IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110010782 


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 defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the applicant's DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 12 May 2008, from his Official Military Personnel File (OMPF).

2.  Counsel states there are two material errors associated with this application:

	a.  the applicant did not violate Article 92 (Failure to Obey Order or Regulation), UCMJ.  The evidence demonstrates he was not on duty at the time he consumed alcohol.

	b.  the applicant’s Article 15 punishment was unreasonably harsh.  The punishment imposed was a forfeiture of $1,901.00 pay per month for 2 months, suspended for 180 days; 45 days extra duty; and an oral reprimand.

3.  Counsel provides:

* Narratives and award certificates for the Bronze Star Medal
* Article 15, UCMJ, dated 12 May 2008
* Two DA Forms 2823 (Sworn Statement)
* Letters of Recommendation
* Extract of Fort Carson Regulation 210-18 (Prohibited and Regulated Conduct), chapter 4 (Alcohol; Uniform; Littering; Parking; and Drug Paraphernalia), paragraphs 4-1 (Alcohol Consumption) and 4-2 (Wear of the military uniform off-post), dated 15 May 1997
* Portions of three noncommissioned officer evaluation reports (NCOERs)

CONSIDERATION OF EVIDENCE:

1.  At the time of the applicant's submission of his application, he was serving on active duty in the rank/grade of sergeant first class (SFC)/E-7.

2.  The applicant enlisted in the Regular Army on 23 August 1988.  He continued to serve on active duty through a series of reenlistments until he was discharged on 2 October 1998.

3.  After a break in service, he again enlisted in the Regular Army on 21 January 2000.  He was discharged on 25 October 2001 for immediate reenlistment.  On 26 October 2001, he reenlisted for an indefinite period.

4.  He was promoted to SFC/E-7 on 1 May 2002.

5.  On 30 September 2006, he was awarded the Bronze Star Medal for meritorious service during Operation Iraqi Freedom (OIF) during the period
15 January to 25 August 2006.

6.  Counsel provided segments of the applicant’s NCOERs for the periods ending November 2005, November 2006, and November 2007.  Part IV (Rater) (Values/NCO Responsibilities) of these NCOERs show he received ratings of "Excellence" (exceeds standards) for competence, physical fitness and military bearing, and leadership.  

7.  On 20 October 2007, he was awarded the Bronze Star Medal (First Oak Leaf Cluster) for meritorious service during Combat Operations in Iraq during the period 8 July to 25 October 2007.

8.  On 12 May 2008, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ for the following offenses:

* violating a lawful general regulation by wrongfully consuming an alcoholic beverage while on duty on 24 April 2008
* being derelict in the performance of his duties in that he willfully failed to prevent two junior NCOs from consuming alcohol in his presence in a public location while on duty and in uniform, as it was his duty to do
* making a false official statement with the intent to deceive

9.  He acknowledged he had been afforded the opportunity to consult with counsel, he did not demand trial by court-martial, he requested a closed hearing in the Article 15 proceedings, he requested a person to speak in his behalf, and he elected to present matters in person.

10.  His punishment consisted of a forfeiture of $1,901.00 pay per month for
2 months (suspended to be automatically remitted if not vacated before
7 November 2008), extra duty for 45 days, and oral reprimand.

11.  The imposing official directed the original DA Form 2627 be filed in the performance portion of the applicant's OMPF.  He was advised of his right to appeal to the commander of the 10th Special Forces Group within 5 calendar days.  He elected to appeal the punishment and to submit additional matters in his behalf.  An officer of the Judge Advocate office determined the proceedings were conducted in accordance with law and regulations and the punishments imposed were not unjust or disproportionate to the offenses committed.

12.  The appeal was denied by the commanding officer of the 10th Special Forces Group on 20 May 2008.

13.  A review of the applicant's military personnel documents in the Interactive Personnel Electronic Records Management System revealed the DA Form 2627, dated 12 May 2008, was filed in the performance and restricted portions of his OMPF.

14.  Counsel provides sworn statements from two SFCs who attested they went to the applicant’s office on 24 April 2008, but he was not in the office.  A master sergeant (MSG) informed them the applicant was off for the day to take care of some personal issues.

15.  He received an NCOER for the period 1 December 2007 through 30 May 2008 that shows he was assigned to Company C, 2nd Battalion, 10th Special Forces Group at Fort Carson, CO as a Special Forces Senior Medical Sergeant.

	a.  The rater applied a "No" for the Army value of "Integrity" with the bullet comments:  "showed poor judgment when he chose to drink on duty" and "accepts responsibility for own actions."

	b.  The rater also selected "Needs Improvement (Some)" for values/
responsibilities in Leadership with the bullet comments "displayed poor leadership by drinking alcohol on duty and influencing two junior NCOs to follow his example."

	c.  The rater assessed his overall performance and potential as "Fully Capable."

	d.  The senior rater assessed his overall performance as "Successful-2 and overall potential for promotion and/or service in positions of greater responsibility as Superior-2."

16.  He received four additional NCOERs subsequent to the receipt of the
Article 15 in question.  The rater assessed him as "Among the Best" and the senior rater assessed him as "Successful-1/Superior-1" and recommended him for promotion to MSG in each NCOER.

17.  His service record does not indicate he was promoted to MSG.

18.  On 13 December 2010, the Department of the Army Suitability Evaluation Board (DASEB) denied the applicant’s request to transfer the Article 15 in question from the performance portion to the restricted portion of his OMPF.  DASEB determined that the board's decision memorandum and the appeal documentation should be filed in the restricted portion of the applicant's OMPF.  

19.  Counsel submits a 9-page brief in which he states the underlying allegation involves the applicant’s violation of Fort Carson Regulation 210-18, paragraph
4-1(a) by allegedly "wrongfully consuming an alcoholic beverage while on duty."  Additionally, counsel states:

	a.  the applicant provided multiple sworn statements during the Article 15 proceedings attesting he was not on duty at the time he consumed the beer.

	b.  the applicant had been the model Special Forces Soldier prior to the allegation and;

		(1)  he earned two awards of the Bronze Star Medal for his combat life-saving skills.

		(2)  he received remarkable NCOERs which noted his expert medical skills, volunteer work at local veterinary clinics, recommendation for immediate 


promotion to MSG, service as the Primary Special Forces Instructor, and sound judgment by engaging an insurgent at close range.

	c.  letter of recommendation from a commissioned officer and statements from NCOs calling the allegations into question.

	d.  the regulation under the UCMJ affirmed that commanders are responsible for maintaining good order and discipline.  He cites Part V(d)(1) of the UCMJ and Army Regulation 27-10 (Military Justice), paragraphs 3-3 and 3-16(d)(4).

20.  Counsel provided letters of recommendation from the applicant’s commanding officer and Battalion Operations Sergeant Major (SGM) at Company E, 1st Battalion, 1st Special Warfare Training Group (Airborne), U.S. Army John F. Kennedy Special Warfare Center and School, Fort Bragg, NC:

	a.  Major (MAJ) AF stated the applicant had served in this command for over 2 years and his level of performance had been nothing short of phenomenal.  He recommended the findings from the review board and the Article 15 be removed from the applicant’s OMPF.  In summary, he stated:

		(1)  the applicant’s incident at the 10th Special Forces Group was a one-time error in judgment and not indicative of his character as an NCO within the Special Forces Regiment.

		(2)  the applicant’s command broke Army regulations in administering his punishment in an attempt to humiliate him and put undue command influence on a warrant officer to write an unfavorable NCOER.

		(3)  the applicant was retained on active duty following his Qualitative Management Program (QMP) review based on his superior performance and his ability to continue to serve within the Special Forces Regiment.  The Article 15 was the only blight on his record, keeping him from attaining E-8 and serving as a Detachment Operations Sergeant.

		(4)  the applicant applied to the appropriate board within the U.S. Army Human Resources Command (USAHRC) to move the Article 15 to his restricted file or to remove it.  However, his request was denied and the findings were filed on the performance section of his OMPF.  This action will further hinder his advancement within his career field.

		(5)  the applicant is a proven leader and has excelled on multiple combat rotations in support of OIF.  He has continuously served in E-8 positions of higher 


responsibility and constantly strove to perform at the highest level to ensure future Special Forces Sergeants received the best military training in the world.  His potential and career progression will not be realized until the Article 15 and board findings are removed.

	b.  SGM MLM stated he worked almost daily with the applicant for over a year and he offers his observations and thoughts on the applicant's behalf.

		(1)  the applicant is a hard charger and applies 100 percent effort to everything he does.  He completed tasks at a higher standard than expected and he was placed in positions where he is trusted to understand and deal with complex issues without the luxury of immediate counsel form his leadership.

		(2)  the applicant has ensured all necessary requirements for logistical and administrative matters were fully addressed during planning and execution of the Special Forces Qualification Course.  He never failed to accomplish a task and never required detailed explanations to accomplish tasks new to him.  He has a gift for understanding requirements at a level deeper than most of his peers.

		(3)  the applicant has demonstrated his leadership abilities when dealing with cadre, students, and demonstrated his professionalism when speaking with superiors.  Additionally, he has the mental capacity and physical abilities to perform the duties of Team Sergeant on a Special Forces Operational Detachment Alpha and currently serves in a position with duties at the E-8 level with distinction. 

21.  Army Regulation 27-10 provides the applicable policies for administration of NJP:

	a.  Paragraph 3-2 states that NJP may be imposed to correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	b.  Paragraph 3-3 (Relationship of NJP to nonpunitive measures) states NJP is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to 


instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment.  Included among nonpunitive measures are denial of pass or other privileges, counseling, administrative reduction in grade, administrative reprimands and admonitions, extra training, bar to reenlistment, and military occupational specialty reclassification.  Certain commanders may administratively reduce enlisted personnel for inefficiency and other reasons.  This authority exists apart from any authority to punish misconduct under UCMJ, Art. 15.  These two separate and distinct kinds of authority should not be confused.

	c.  Paragraph 3-18 (Notification and explanation of rights) states, in part, 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.  The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed.

	d.  Paragraph 3-36 (Records of punishment) states all actions taken under UCMJ, Article 15, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627.  

22.  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 the ABCMR; DASEB; Army Appeals Board, Chief of Appeals and Corrections Branch, Human Resources Command, OMPF custodian when documents have been improperly filed; Chief of the Appeals Branch of the Army Reserve Personnel Center, and the Chief of the Appeals Branch of the National Guard Personnel Center.

23.  Fort Carson Regulation 210-18, chapter 4, paragraph 4-1 governs alcohol consumption and states in part, no person may consume alcoholic beverages while on duty.  On duty is that period of time during which the Soldier is performing or is directed to perform duties, regardless of the time of day or whether the Soldier is in uniform.  On duty includes any meal break.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP under Article 15, UCMJ for violating a lawful general regulation by wrongfully consuming an alcoholic beverage while on duty and for being derelict in the performance of his duties in that he willfully failed to prevent two junior NCOs from consuming alcohol in his presence in a public location while on duty and in uniform, as it was his duty to do.

2.  The evidence of record shows the Article 15 and allied documents were properly filed in the performance portion of the applicant's OMPF.  However, the Article 15 and allied documents were subsequently also placed in the restricted portion of his OMPF.

3.  Counsel contends the applicant did not violate Article 92, UCMJ and the applicant’s Article 15 punishment was unreasonably harsh.  However, the evidence of record does not support his claims.

4.  Counsel provided sworn statements from two NCOs who attest the applicant was not in his office on the day of the offense.  The NCOs were informed the applicant was on leave for the day to take care of some personal issues.

5.  It appears that during the closed hearing of the Article 15 proceedings, the imposing commander was convinced beyond a reasonable doubt that the applicant committed the offenses and imposed the appropriate punishment authorized under his jurisdiction.

6.  The two supporting statements recommending removal of the applicant's Article 15 speak highly of the applicant's performance of duty and outstanding leadership qualities.  His NCOERs rendered after the issuance of the Article 15 shows he was rated as "Among the Best" and "1-Sucessful/Superior" by his rating officials.

7.  The applicant's misconduct is documented in his NCOER that was rendered during the same period of the Article 15.  It has been almost 4 years since the rendering of the Article 15.  The intent served does not require that the Soldier "pay a price," but rather that the Soldier show through his performance and behavior that the rehabilitative aspect of the NJP was met.

8.  In view of the foregoing, it would be equitable to remove the Article 15 and all allied documents from the performance portion of his OMPF.  However, these documents should remain filed in the restricted portion of his OMPF.  


9.  In view of the foregoing, the applicant's record should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 Article 15, dated 12 May 2008, and all allied documents from the performance portion of his OMPF.

2.  The Board further determined that the evidence presented was 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 removal of the Article 15, dated 12 May 2008, from his OMPF.



      ___________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)                                         AR20110010782



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ABCMR Record of Proceedings (cont)                                         AR20110010782



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