IN THE CASE OF:	  

		BOARD DATE:  7 February 2012

		DOCKET NUMBER:  AR20110015951 


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 the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 7 October 2010, from his official military personnel file (OMPF), or in the alternative, the reduction in rank which resulted from the Article 15 be wholly set aside.

2.  The applicant states the Article 15 findings were not supported by the evidence and did not meet standard of beyond a reasonable doubt.  He states the Article 15 was unjust and the punishment he received is too severe.

3.  The applicant provides a self-authored memorandum, dated 28 July 2011, and 15 enclosures as listed therein.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 31 January 1995, in the rank/grade of private (PV1)/E-1.  He completed training as a chemical operations specialist.  He remained on active duty through continuous reenlistments and he was promoted through the ranks to staff sergeant (SSG)/E-6.

2.  At the request of his unit commander, the applicant underwent a mental status evaluation on 22 July 2009.  The attending psychiatrist stated the applicant had been taking medication for Attention Deficit Disorder (ADD) and that when people miss several doses of the medication, they have a rebound problem of excessive 

sleepiness.  The psychiatrist stated it was her understanding that the applicant missed several doses and essentially slept for many hours due to rebound sleepiness and, as a result, he was unable to meet his work obligations.  She states she and the applicant discussed ways to decrease the likelihood of it occurring again.

3.  On 30 July 2010, an informal equal opportunity (EO) complaint was filed against the applicant for making disparaging racial remarks to a noncommissioned officer (NCO) subject to his orders and for sexual discrimination/harassment.

4.  An investigation officer (IO) was appointed pursuant to Army Regulation 15-6 (Investigation Guide for Informal Investigations) and Army Regulation 600-20 (Army Command Policy) to conduct an informal investigation into all of the facts and circumstances pertaining to the EO complaint.  The IO concluded that after investigating the allegations against the applicant, there was a preponderance of the evidence to support he committed violations of the EO program outlined in Army Regulation 600-20.  The IO recommended punishment under the Uniform Code of Military Justice (UCMJ) as appropriate and that he should be removed from his duty position of Analytical NCO in charge (NCOIC) in Chemical Response Team (CRT) 2, Bravo Company.

5.  On 7 October 2010, the applicant accepted NJP for three specifications of disrespectful behavior toward his superior commissioned officer; and three specifications of being cruel toward, oppressing, and maltreating three NCOs, persons subject to his orders.

6.  The DA Form 2627 he received shows he elected not to demand trial by court-martial.  He requested a closed hearing and a person to speak in his behalf.  He also elected to present, in person, matters in defense, extenuation, and/or mitigation.

7.  Having considered all matters presented, the applicant's battalion commander found him guilty of the stated specifications.  He directed the DA Form 2627 be filed in the performance section of the applicant's OMPF.  The following punishment was imposed:

* reduction to sergeant (SGT)/E-5
* forfeiture of $1,462.00 per month for 2 months (suspended, to be automatically remitted if not vacated before 7 April 2011)
* 45 days extra duty

8.  The applicant elected to appeal the findings and punishment and to submit additional matters.

9.  He received a Relief for Cause NCOER for the period 15 April 2010 through 19 October 2010.  His principal duty title was Chemical, Biological, Radiological, and Nuclear NCO.  He received "NO" ratings in Loyalty, Respect/EO/EEO, Honor, and Integrity.  He was rated "Needs Improvement" in Competence, Leadership, and Responsibility & Accountability.  The rater commented:

* didn't make sound judgment when working with subordinates without supervision
* did not set the example for seniors, peers, nor subordinates by receiving UCMJ action during the rating period
* was relieved for failing to comply with the Army EO Policies

10.  The senior rater commented:

* Soldier refuses to sign
* do not promote
* do not send to NCO Education System (NCOES)
* always willing to learn; a team player
* possesses limited potential for advancement

11.  On 19 October 2010, his NJP appeal was denied.

12.  The applicant was notified he was being recommended for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14-12c, for commission of a serious offense.  His commander cited three specifications of disrespectful behavior towards a superior commissioned officer and three specifications of being cruel towards, oppressing, and maltreating subordinates.  He was told he could request a hearing before an administrative board, or he could present written statements instead of requesting board proceedings.

13.  The complete board proceedings are not available for review.  The available evidence provided by the applicant shows an administration separation board convened to determine whether he should be separated from the Army prior to his expiration of term of service.  The board found that two of the three allegations of disrespect toward a superior commissioned officer were supported by a preponderance of evidence.  The board further found the third allegation of disrespect toward a superior commissioned officer and the three allegations of 

being cruel toward, oppressing, and maltreating three NCOs were not supported by a preponderance of evidence.  The board recommended the applicant be retained in the Army and rehabilitatively transferred.

14.  The applicant submits a self-authored memorandum, dated 28 July 2011, in which he makes the following contentions:

* he never called the Mexican Soldier a "wet back" or said he would not want his sister to be with a "F'n" Mexican
* there is no evidence confirming he made these statements
* he admitted and apologized to his superior commissioned officer for talking over her and adjusted his style to defer to her more
* he never denied making the mistake of calling his superior commissioned officer "hon"; however it was inadvertent
* he was found not guilty by the administrative separation board of looking at his superior commissioned officer's buttocks and he denies it ever happened
* he asked a Korean soldier if he would help him have a suit made because he was planning to be married and the Korean soldier was familiar with the area in which he was stationed when he was assigned to Korea
* the Korean Soldier misunderstood him and thought he was putting down his family
* he was found guilty of putting an arm around a sergeant and saying "you know I love you right" at his Article 15 hearing; but the separation board found the allegation was not supported by the evidence of record
* the Article 15 punishment was too harsh and he was taking Adderall, which causes him to be over-stimulated, erratic, and unbalanced
* due to his current retention control point, he will be separated in pay grade E-5 with over 15 years of service
* the sergeant who he was accused of calling a "wet back" needed to sink him or face having him as his rater

15.  He submits:

* DA Forms 4856 (Developmental Counseling Form) showing the counseling sessions he had with the Soldier that filed the EO complaint against him
* Sworn statements
* EO investigation questions and responses
* Olympic Polygraph, Incorporated responses and findings
* Letters from 29 individuals attesting to his good character
* 
Photographs of himself and others
* DA Forms 2166-8 (NCO Evaluation Report (NCOER)), dated between June 2001 and October 2010

16.  He also submits a Report of Mental Status Evaluation that shows he was evaluated in the Department of Forensic Psychiatry at Madigan Army Medical Center, Fort Lewis, WA, on 7 March 2011.  He was referred over concerns that he may have a psychiatric disorder that interferes with his capacity to perform assigned military duties.

17.  Based on the results of the evaluation, the applicant met the medical retention standards as defined in Army Regulation 40-501 (Standards of Medical Fitness).  He was cleared for a psychiatric perspective for any administrative action deemed appropriate by his command.  However, the report indicates that the prescription modifications could have caused the conduct problems.

18.  Army Regulation 27-10 (Military Justice) provides the applicable policies for administration of NJP.  The regulation 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 a 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.  All
Article 15 actions, 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.  The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a Soldier’s record.

	a.  Chapter 3 states that a commander will personally exercise discretion in the nonjudicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated, determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and determining the amount and nature of any punishment if punishment is appropriate.

	b.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states 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.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

	c.  Paragraph 3-28 states that clear injustice does not include the fact 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.  It further states that normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

	d.  Paragraph 3-18(l) 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.  The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  Insufficient evidence has been submitted to show that he was erroneously issued the Article 15, dated 7 October 2010.

3.  An informal investigation was conducted based on the EO complaint against him.  The IO found there was a preponderance of the evidence to support he committed the alleged offenses.  The IO recommended punishment under the UCMJ and removal from his duty position.

4.  He received an Article 15 on 7 October 2010 and was relieved for cause as a result of the IO's findings and recommendation.  His commanding officer believed there was sufficient evidence to support he committed the alleged offenses.  The fact the board of officers believed otherwise is not a basis for removing the Article 15 from his OMPF.

5.  He was reduced to SGT/E-5 as a result of the punishment that was imposed against him.  There is no basis for setting aside that punishment.  The Article 15 was properly filed in performance section of his OMPF.

6.  The applicant has not shown error or injustice in the filing of the Article 15 or the punishment imposed against him on 7 October 2010.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20110015951



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ABCMR Record of Proceedings (cont)                                         AR20110015951



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