IN THE CASE OF:	  

		BOARD DATE:	    29 March 2012

		DOCKET NUMBER:  AR20110018204 


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 that the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), imposed on 21 December 2009, be removed from his Official Military Personnel File (OMPF).  He also requests that the reduction in rank as a result of the punishment imposed be set aside and the rank and grade of sergeant (SGT)/E-5 be restored.

2.  The applicant states he served as an E-5 for over two years including two deployments during that time.  He contends that while in Afghanistan, he sustained a traumatic brain injury caused by an improvised explosive device and was recently discharged as result of the injuries.  One month prior to his Medical Evaluation Board proceedings, he received an Article 15, was demoted to the rank of specialist (SPC)/E-4, and had his top secret security clearance suspended.  As a result of that incident, he was an E-4 when honorably discharged.  

3.  The applicant states that he served honorably, deployed, and sustained combat injuries as an E-5; therefore, he should be compensated and receive benefits as an E-5 and not an E-4.  He continues that the punishment he received served its intended purpose long ago and it is in the best interest of the Army to restore his rank because of the circumstances.  His security clearance was subsequently restored which shows that authorities believed the original punishment served its intended purpose and that it was in the best interest of the Army to allow him to do his job.

4.  The applicant provides a Joint Clearance and Access Verification System (JCAVS) Person Summary.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the applicant believes he was erroneously punished for something he did not do and further believes the punishment was in excess of the crime allegedly committed.  He and his commander had a tense relationship and did not get along and he also believes the outcome was strongly influenced by his commander at the time.  Counsel continues that the board that determines issuance and revocations of security clearances reinstated his top secret clearance in March 2010.  His punishment has served its intended purpose and the removal of the Article 15 from his OMPF would be in the best interest of the Army.  Further, his promotion back to E-5 would also be in the best interest of the Army as he served honorably as an E-5 for over four years, including two combat tours.  

2.  Counsel provides no additional evidence

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 July 2001 and upon completion of initial entry training he was awarded military occupational specialty 31P (Microwave Systems Operator/Maintainer).  He was promoted to SGT/E-5 on 1 April 2005.  He reenlisted on 29 November 2005 and on 11 April 2007.

2.  On 21 December 2009, after consulting with legal counsel, he accepted nonjudicial punishment (NJP) for:

	a.  being absent from his unit without authority for one day;

	b.  failing to go to his appointed place of duty; and

	c.  with intent to defraud, falsely pretended to have official duties authorizing him to request criminal background checks on behalf of the Department of the Army for the purpose of determining good or bad conduct for official purposes, then knowing that the pretenses were false, and by means thereof did wrongfully obtain from the Albuquerque, NM Police Department services of a value of $10.00, to wit:  criminal background checks on two individuals.

3.  He was reduced to the rank of SPC/E-4 as part of his punishment.  He did not appeal the punishment.

4.  The imposing commander directed the DA Form 2627 be filed in the restricted section of his OMPF.  A review of his OMPF reveals the DA Form 2627 is filed in the restricted section.

5.  Fort Carson, CO, Orders Number 189-0015, dated 8 July 2011, directed his discharge from the service.  These orders show he was authorized disability severance pay in pay grade E-4.

6.  Records show that incident to the applicant's disability separation, the Army Grade Determination Review Board (AGDRB) had reviewed his records and determined the highest grade he satisfactorily served was E-4.

7.  On 26 August 2011, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged in the rank and pay grade of SPC/E-4.

8.  He provided a JCAVS Person Summary that indicates he was granted a security clearance on 10 March 2010.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  NJP may be imposed to correct, educate, and reform offenders who 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; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial:

	a.  Paragraph 3-6 addresses the filing of an NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.
	b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates there must be clear and compelling evidence to support the removal of a properly completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

	d.  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. 

10.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation provides that only those documents listed in Table 2-1 and 
Table 2-2 are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Table 2-1 shows that the DA Form 2627 is filed in either the performance or restricted section of the OMPF as directed in item 5 of the DA Form 2627.

11.  Paragraph 2-3 of Army Regulation 600-8-104 provides that the restricted section of the OMPF is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It will not be released without written approval from the Commander, U.S. Army Human Resources Command, or Headquarters, Department of the Army, selection board proponent.  This paragraph also provides that documents in the restricted section of the OMPF are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the OMPF; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

12.  Army Regulation 15-80, provides for a grade determination for Soldiers who are not serving at their highest grade at the time of disability separation.  The AGDRB has the discretion to advance such Soldiers to the highest grade or any intermediate grade satisfactorily served.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that a DA Form 2627 should be removed from his OMPF and his former rank and grade of SGT/E-5 restored has been carefully considered.

2.  Counsel stated that the applicant believes he was erroneously punished for something he did not do.  However, he had the opportunity to appeal the imposition of NJP or demand trial by court-martial in order to prove his innocence.  He elected to accept the NJP.

3.  The available evidence confirms his NJP proceedings were conducted in accordance with law and regulation and the DA Form 2627 is properly filed in the restricted section of his OMPF as directed by the imposing commander.  There is no evidence of record and the applicant provides insufficient evidence to show the DA Form 2627 was imposed in error or was unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust, or the applicant must present compelling evidence to warrant removal as a matter of equity.

4.  He received a reduction in rank as a result of the punishment imposed.  He has not shown error or injustice in the imposition and filing of the Article 15 or the punishment imposed against him on 21 December 2009.  The punishment imposed was not unreasonable given the offenses of which he was found guilty and his status as a noncommissioned officer.  Therefore, there is no basis for setting aside that punishment and restoring his former rank and grade.

5.  The AGDRB reviewed the applicant's records incident to his disability separation, determined the highest grade he satisfactorily served was E-4, and he was separated at that grade.  Given his misconduct as a noncommissioned officer, the AGDRB's determination was reasonable.

6.  Reinstatement of the applicant's security clearance does not undermine the validity of his Article 15 punishment or his grade determination.
7.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110018204



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ABCMR Record of Proceedings (cont)                                         AR20110018204



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