IN THE CASE OF:	  

		BOARD DATE:  13 March 2012

		DOCKET NUMBER:  AR20110022149 


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, Uniform Code of Military Justice (UCMJ)), dated 22 September 2011, from his official military personnel file (OMPF) and restoration of his rank/grade as a promotable staff sergeant (SSG)/E-6.

2.  The applicant states he was wrongfully punished for a crime he didn’t commit.  He was punished for illegal association with a Soldier in training.  He told his chain of command he never called the Soldier’s mother or answered the phone when he was allegedly called by the Soldier.  Even when the military police investigation came back saying there was no phone found with his name or records on it, he was still punished because of what the chain of command thought they heard.  He further states he was not punished due to the facts, but was punished according to how the chain of command felt about the entire situation.

3.  The applicant provides:

* DA Form 2627
* a memorandum appealing Article 15
* 3 pages of emails
* 3 DA Form(s) 2823 (Sworn Statement)
* 1-page phone record
* Affidavit of Parentage for Child Born Out of Wedlock
* a memorandum of Intent to Remove from Drill Sergeant Program
* Permanent Order 251-010, Bronze Star Medal certificate
* Enlisted Record Brief
* 2 DA Form(s) 2166-8 (Noncommissioned Officer Evaluation Report)
* DA Form 4126 (Bar to Reenlistment Certificate)
* 1-page Bar to Reenlistment Rebuttal
* a 2-page email
* 3 letters of support

CONSIDERATION OF EVIDENCE:

1. The applicant is serving as a Regular Army (RA) sergeant (SGT)/E-5.  He enlisted in the RA on 14 June 2000 and has served through three reenlistments in various positions within and outside continental United States.  He was assigned to Headquarters, Company A, 1st Battalion, 13th Infantry Regiment, Fort Jackson, SC. 

2.  The applicant’s OMPF contains a DA Form 2627 which shows the following:

   a.  He accepted NJP on 9 September 2011, while serving in the rank of SSG, for wrongfully engaging in an illegal association with private first class (PFC)/E-3 Sxxxxxxx X. Jxxxxxx on 5 July 2011;

   b.  He elected not to demand a trial by court-martial, and instead he chose for the matter to be handled by his brigade commander in a closed hearing;

   c.  He elected to have someone to speak on his behalf, and to submit matters in extenuation, mitigation, or defense at the NJP hearing;

   d.  Subsequent to the hearing, the punishment imposed consisted of a reduction to sergeant/E-5; forfeiture of $1,473 pay per month for 2 months, (suspended with automatic remission if not vacated before 9 March 2012), extra duty for 45 days, (suspended with automatic remission if not vacated before        9 March 2012), and restriction to the limits of the company area for 45 days (suspended with automatic remission if not vacated before 9 March 2012);

   e.  The commander directed the DA Form 2627 be filed in the performance section of the applicant's OMPF;

   f.  The applicant appealed the punishment and his appeal was reviewed by a Judge Advocate General attorney, who opined that the proceedings were conducted in accordance with law and regulation, and the punishment imposed was not unjust or disproportionate for the offense committed; and

   g.  On 22 September 2011, the appellate authority denied the applicant's appeal of the NJP.  On 23 September 2011, the applicant acknowledged the action taken on his appeal.

3.  A review of the applicant's OMPF reveals the DA Form 2627 in question and documents pertaining to his appeal are erroneously filed in the restricted section of his OMPF.  The commander directed the DA Form 2627 be filed in the performance section of his OMPF.  

4.  He provided:  

   a.  A statement, dated 14 September 2011, from his senior defense counsel who requested the commander either set aside the Article 15 due to a lack of evidence which establishes guilt beyond a reasonable doubt or suspend the punishment for 180 days.  Counsel further opined the investigation conducted was glaringly insufficient and the evidence which accompanied the allegation amounted to three sworn statements:  one from the Soldier, one from the first sergeant, and one from his commander and that all differed on what exactly was said from the person on the other end of the phone.  There was no phone record of what number called PFC Jxxxxxx’s mother’s house, no record of what number was actually dialed by PFC Jxxxxxx in the commander’s office, no cell phone records from the cell phone provider, and no independent evidence which linked the applicant to the cell phone number.

   b.  Three sworn statements from the individuals involved in the investigation who witnessed the actions that occurred.  Each statement identifies the applicant’s voice on the other end of the phone being contacted by PFC Jxxxxxx.
   
   c.  A memorandum, dated 11 September 2011, appealing his field grade Article 15, requesting a reduction in punishment and to be allowed to continue service as a Drill Sergeant.  He states in PFC Jxxxxxx’s sworn statement, she stated her mother received a phone call from what sounded like an older black male, but she could hardly hear what he was saying.  PFC Jxxxxxx then went to the first sergeant and company commander who called the number back to listen and see who would answer the phone.  Despite contradictory statements as to exactly what was said, the applicant stated in a closed Article 15 proceeding that he was never on the other end of the phone.  
   
   d.  numerous supporting documents which attest to his commendable conduct and duty performance during his period of service.

    

5.  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.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  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 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 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.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  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 3-18(l) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  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 that 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 there is 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 3-37b(1)(a) 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.

	d.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states that 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).  

6.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This regulation states that only those documents listed in table 2-1 (Composition of the OMPF) and table 2-2 (Obsolete or No Longer Used Documents) 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.

7.  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 the 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.

8.  Army Regulation 27-10 states that commanders may impose nonjudicial punishment for the administration of discipline under the provisions of Article 15 of the UCMJ.  Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15.  This regulation also stipulates that only one appeal is permissible under Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.

9.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides that Soldiers may be reduced in rank and grade as a result of misconduct in violation of the UCMJ.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant, as a SSG in a leadership position, violated the UCMJ and subsequently accepted NJP on 9 September 2011 for wrongfully engaging in an illegal association with PFC Sxxxxxxx X. Jxxxxxx.  

2.  The evidence confirms the applicant elected not to demand a trial by court-martial and chose to have his case disposed of through Article 15 proceedings at a closed hearing with his brigade commander.  He had the opportunity to decline the Article 15 at any time prior to the imposition of punishment being announced and demand trial by court-martial.  His election to accept the Article 15 was his choice.  He was further afforded the opportunity and exercised his right to appeal.  On 22 September 2011, the appeal authority denied the applicant's appeal of the NJP.  There is neither an error nor an injustice during the processing of his NJP.

3.  Issues of guilt or innocence under Article 15 of the UCMJ are not normally reexamined.  This is the imposing commander’s function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  Furthermore, his case has already been adjudicated through the Army’s legal system and he was provided with the right to trial by court-martial and afforded the opportunity to appeal his punishment through the proper channels.  By regulation, the basis for any set-aside action must show "clear injustice," which means an unwaived legal or factual error 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.

4.  The evidence of record confirms the applicant's NJP processing was accomplished in accordance with the applicable law and regulation and that the imposing commander determined beyond a reasonable doubt that the applicant was guilty of the charged offenses.  There is no evidence of record or independent evidence provided by the applicant that would call into question the validity of this decision of the imposing commander.

5.  When an NJP action reflects unmitigated moral turpitude or lack of integrity, or evidence of character deficiency or substantial breach of military discipline, the interests of the Army are compelling and in such cases the record should be filed in the OMPF.  The fact that he engaged in an illegal association with a PFC while holding the rank of SSG is evidence of a lack of integrity.

6.  The applicant violated the UCMJ and he was accordingly punished.  His punishment included a reduction of one grade.  There is neither an error nor an injustice in his NJP proceedings.  He has not demonstrated the NJP action was unjust or untrue, or that this NJP should be removed because of the length of time, or that a removal would be in the best interest of the Army.  Therefore, he is not entitled to relief in this case.

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)                                         AR20110022149



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ABCMR Record of Proceedings (cont)                                         AR20110022149



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