BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20120002932 


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 reinstatement of the applicant's rank/grade to sergeant (SGT)/E-5.

2.  Counsel states the U.S. Army Human Resources Command's (HRC) unilateral decision not to effect Lieutenant Colonel (LTC) DAL's action of setting aside the applicant's Article 15 is in error as HRC has incorrectly interpreted the Army regulations that pertain to the Article 15.  Counsel further states:

* the applicant received a field grade Article 15 while assigned to the 140th Movement Control Team (MCT), 57th Transportation Battalion, 593rd Sustainment Brigade (SB), based on allegations that he provided alcohol to a minor
* the applicant disputed the allegations but his commanding officer, LTC JM, the battalion commander, found he committed misconduct and imposed a punishment of 30 days of extra duty and reduction to the rank/grade specialist (SPC)/E-4 – the reduction to SPC was suspended until 4 December 2011
* on 24 November 2010, LTC JM vacated the suspension based on the finding that the applicant failed to attend a group counseling at Madigan Army Medical Center
* in conjunction with the vacation the applicant was offered the chance to present evidence concerning the alleged violation
* the applicant provided the statement of a witness at the hospital who placed him in the waiting room at the hospital
* LTC JM vacated the suspension and reduced him to SPC
* after the vacation of his punishment he transferred to the 258th MTC and deployed to Afghanistan where he was unable to make further submissions with respect to his Article 15
* on 24 October 2011 while on leave from his deployment, the applicant submitted a letter to LTC DAL (LTC JM's successor in the 140th MTC) requesting his Article 15 be set aside
* the applicant provided LTC DAL with evidence to show he did not provide a minor with alcohol and that Sergeant First Class (SFC) TBT's counseling statement, which LTC JM relied on in vacating the punishment, was inaccurate
* the applicant also provided LTC DAL with a letter refuting claims of malingering and failing to show up at his appointment were untrue and supported this letter with statements from witnesses and hospital staff members
* on 16 November 2011, LTC DAL set aside his Article 15
* after LTC DAL set aside the Article 15, the applicant contacted HRC through his chain of command requesting reinstatement of his rank/grade to SGT/E-5.
* on 13 December 2011, the applicant received an email from Chief Warrant Officer Two (CW2) RS, a human resources technician in the 593rd SB
* CW2 RS stated that after inquiring with the HRC Junior Enlisted Promotions Branch, the Army would not reinstate him to SGT because LTC DAL set aside the punishment more than 4 months after it was imposed
* Army Regulation 27-10 (Military Justice) states a commander or successor may set aside an Article 15 and restore rights, privileges, and property affected
* Army Regulation 27-10 also states this may only occur when the punishment has resulted in a clear injustice under all the circumstances of the case, such as a factual error or new evidence clearing the Soldier
* Army Regulation 27-10 also allows the commander to set aside the punishment after 4 months in cases of unusual circumstances, in such cases an addendum is submitted detailing the unusual circumstances
* the applicant was able to show he checked the identification of all the Soldiers and believed they were 21 years of age


* the applicant was able to show they were drunk when they arrived at his home, prior to the gathering
* the unusual circumstances (his deployment) prevented him from collecting all the evidence he needed and filing the request to have his Article 15 set aside within the 4-month time limit

3.  Counsel provides:

* memorandum of law supporting the applicant's reinstatement of rank
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 4 November 2010
* two DA Forms 2627-2 (Record of Supplementary Action under Article 15, UCMJ), dated 24 November 2010 and 18 November 2011
* two memoranda
* three sworn statements
* DA Form 4856 (Developmental Counseling Form), dated 17 November 2010
* patient appointments
* marriage license
* two emails
* letter, dated 20 December 2011

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having prior enlisted service, the applicant enlisted in the Regular Army on 28 July 2005 and held military occupational specialty 88N (Transportation Management Coordinator).

3.  His records show he was promoted to SGT/E-5 on 1 December 2009 and he was assigned to the 57th Transportation Battalion, 593rd SB, Joint Base Lewis-McChord (JBLM), WA, from on or about December 2009 through on or about December 2011.

4.  Counsel provided a witness statement, dated 3 October 2010, from the applicant's current spouse (then girlfriend) who states:

	a.  on 15 May 2010, the applicant and his current spouse had a barbeque at their home for some new Soldiers from his company.  SPC H (a male Soldier) showed up at around 7:00 p.m.  Private (PV2) DM and four other female Soldiers arrived around 8:30 p.m. and most of them were drunk when they arrived.  She overheard them say they had been at a club before they came over;

	b.  PV2 DM sat next to SPC H and the applicant on the couch and he asked to see their identifications to make sure everyone was of drinking age;

	c.  at around 9:00 p.m. or 10:00 p.m., all the female Soldiers except PV2 DM left.  The applicant made sure they all had a designated driver before they left;

	d.  the applicant's wife went upstairs to bed after the ladies left because PV2 DM had not spoken to her and was using profanity.  PV2 DM stayed at the house with SPC H until around 1:00 a.m.;

	e.  at around 1:00 a.m. she heard her back door shut and the sound of an engine starting.  She saw SPC H's truck leaving from her window.  She went downstairs to look for the applicant who was in the bathroom;

	f.  when he came out of the bathroom he asked her where PV2 DM and SPC H were.  She told him what she had seen and he became very angry.  He called SPC H right away and went after them;

	g.  she was told that the applicant provided PV2 DM with a ride home to her barracks and the Soldier in charge of quarters was a witness; and

5.  Counsel provides an undated witness statement from the daughter of the applicant's spouse which states her mother and the applicant invited some of his friends from work to their home on 15 May 2010.  She further states:

	a.  her mother made barbecued chicken and then the first man (SPC H) arrived followed by "some loud drunk girls" who were "yelling;"

	b.  she remembered that her brother was too afraid to go downstairs to get his food so she went to get it for him.  She went to the table to get some food for her brother and then took it upstairs to him.

	c.  when she came back downstairs to get her own food she saw the applicant sitting on the couch.  He was asking the girls for their ID cards and "questioning an African-American woman with shoulder-length hair about her age, although she already looked pretty drunk";

	d.  "the girls sitting on the couch were very loud and yelling and cussing."  She and her brother were intimidated.  She "couldn't even sleep with all their screaming"; and

	e.  they were up for a long time and she remembered the applicant "scrambling to get everyone safely driven home."

6.  Counsel provides a DA Form 2627 which shows the applicant accepted nonjudicial punishment (NJP) in a closed hearing under the provisions of Article 15 of the UCMJ on 4 November 2010 for wrongfully "contributing" alcohol to a minor on 14 May 2010.  He indicated on the form that he did not request a trial by court-martial and he requested persons to speak on his behalf.  The imposing commander (LTC JM) directed filing of the original DA Form 2627 in the restricted section of the applicant's official military personnel file (OMPF).  The applicant elected not to appeal his NJP.

7.  The punishment consisted of a reduction in rank to SPC/E-4, suspended, but to be automatically remitted if not vacated before 4 December 2011, and extra duty for 30 days.

8.  His OMPF does not contain a copy of this Article 15.

9.  Counsel provides a DA Form 4856, dated 17 November 2010, from SFC TBT who states:

	a.  on 17 November 2010, the applicant was scheduled to be at group session (mental health) from 0800-1000 hours.  SFC TBT spoke to Mrs. SC, the front desk clerk for mental health, and she stated the applicant was not present for his appointment;

	b.  SFC TBT stated this was a violation of Article 86 and a form of malingering.  SFC TBT went on to say he was troubled by this violation because the applicant had received a field grade Article 15 two weeks prior and had been counseled by the battalion commander LTC JM to ensure he understood the importance of being where he was supposed to be;

	c.  on 9 November 2010, the applicant had been counseled by his squad leader for not being at his appointed place of duty and the chain of command decided to use this counseling as a warning rather than using it to vacate his suspension;

	d.  the chain of command has done everything possible to be supportive emotionally, mentally, and professionally, including allowing the applicant time to get married during duty hours while he was serving extra duty in the evening;

	e.  SFC TBT, the co-chair of the group, and the clinic officer in charge to verify he went to his appointment both stated he was not there for his appointment; and

	f.  SFC TBT recommended the suspension on his reduction to SPC be vacated and that he be reduced in grade immediately.

10.  The applicant checked a block which indicated he disagreed with the information SFC TBT recorded on the DA Form 4856.

11.  Counsel provided a witness statement, dated 22 November 2010, in which SPC TRB stated she saw him at the Madigan Army Medical Center the day of his appointment.

12.  Counsel provides a DA Form 2627-2 which shows LTC JM, the battalion commander and imposing officer, vacated the suspension effectively reducing him to SPC on 24 November 2010.  This form also shows the applicant was given the opportunity to present a rebuttal and he was present at the vacation proceedings.  LTC JM directed filing of the DA Form 2627-2 in the restricted section of the applicant's OMPF.

13.  His OMPF does not contain a copy of this DA Form 2627-2 or any reduction orders.

14.  His records contain a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) which covered the rating period 1 December 2009 through 24 November 2010.  This form lists his rank as SPC.

15.  Counsel provides a copy of the applicant's marriage certificate which shows the applicant was married on 30 December 2010.

16.  Counsel provides a memorandum, dated 24 October 2011, wherein the applicant formally requested through his chain of command that his Article 15 be set aside in accordance with Army Regulation 27-10, paragraph 3-28.  He requested that the NJP he incurred as a result of his Article 15 be set aside and that his rank of SGT/E-5 be restored.  He further stated:

	a.  On or about 15 May 2010, he invited some new Soldiers to his home for dinner/a social gathering.  At around 8:30 p.m., PV2 DM arrived and she was already drunk.  PV2 DM and SPC H kept going to his truck where SPC H had a case of beer.

	b.  He never physically handed out any alcohol or fixed her a drink.  He checked everyone's identification and he did not fail to look at the photograph.  PV2 DM had a Maryland driver's license that showed she was 21 years old.

	c.  Shortly after his social gathering he found out that PV2 DM had just turned age 18.  He notified his NCO in charge when he found out.

	d.  His company (140th MCT at the time) informed him in or around September 2010 that he was under investigation for providing alcohol to a minor.

	e.  A hearing was held on 2 November 2010.  He was only given 3 or 4 hours of advanced notice in which to prepare.

	f.  He provides a sworn statement from his step-daughter stating she had seen him checking ID cards, his wife was at the hearing as a witness and stated PV2 DM had been drunk when she arrived at their home, and another Soldier testified he had seen PV2 DM at a club in Tacoma which had an established 
21-year minimum age limit.

	g.  LTC JM questioned her about the club and her driver's license.  She responded that she had never been to a club in Tacoma, she always went to clubs in Seattle, and she did not have a driver's license when she arrived at his home and had only recently obtained a Washington driver's license.  However, she had been driving to work since she arrived at JBLM.  She became very quiet when LTC JM asked to see her old driver's license.

	h.  He received a field grade Article 15 as a result of this hearing.  LTC JM stated that even though he had checked her driver's license, he failed to check her military ID card.  LTC JM also stated he was directly responsible for her drinking even though he did not directly provide it to her because the alcohol consumption occurred on his property.

	i.  On 17 November 2010, he went to group counseling at Madigan Army Medical Center.  He showed up on time to attend his walk-in appointment.  The lady at the check-in desk was busy gossiping with her coworkers.  He handed her his ID card, but she must have forgotten to check him in.  He was not required to sign anything.

	j.  Later that day he was notified by his chain of command that he had missed his appointment and, therefore, he was going to be punished by a reduction in rank/grade to SPC/E-4 for failing to be at his appointed place of duty.

	k.  He provided a witness statement from SPC TRB who had seen him at the hospital; however, his chain of command processed the vacation without verifying many details.

17.  Counsel provides a memorandum, dated 2 November 2011, wherein the applicant addressed the developmental counseling he received from SFC TBT on 17 November 2010.  The applicant stated the information in the counseling statement was incorrect in that:

	a.  SFC TBT contacted Mrs. SC, the front desk clerk for mental health, who stated he was not present for his appointment on 17 November 2010.

	b.  He provided his medical appointment list which, he stated, shows he did not have a scheduled appointment that day and that group therapy was held on a walk-in basis.  If he had missed an appointment, the list would have recorded him as a no-show.

	c.  He spoke to Ms. D at the Madigan Army Hospital Center who volunteered to speak on his behalf.

	d.  She told him Mrs. SC is no longer working at the check-in desk, she was moved to another location.

	e.  When he mentioned in detail how he had handed Mrs. SC his ID card and she continued talking about her personal life at the check-in counter, Ms. D replied, "Yep, that sounds like her."

	f.  Ms. D then stated this was not the only time Mrs. SC failed to check in a patient.  She provided her phone number in case the command wanted to verify her statements.

	g.  SFC TBT also stated in this counseling that his old chain of command had been supportive and had allowed him to get married during duty hours.

	h.  The counseling statement was issued on 17 November 2010.  He was married on 30 December 2010 and he was off duty that day.  He attached a copy of his marriage certificate as proof.

18.  Counsel provides a copy of the applicant's past appointment listing which recorded his appointments from 2 November 2010 to 9 December 2010.  This listing includes the appointment status annotations:  kept appointment, cancel (P), cancel (F), and walk-in.  This list does not show a listing of cancellation or failure to show on 17 November 2010.

19.  Counsel provides a DA Form 2627-2, dated 16 November 2011, in which LTC DAL (LTC JM's successor) set aside the Article 15 the applicant received on 24 November 2010.

	a.  in item 4 (Setting Aside), LTC DAL stated the punishment of reduction to SPC/E-4 was being set aside on the basis that "the Soldier has performed in an outstanding manner in Afghanistan.  He deserves to be a sergeant again"; and

	b.  in the authentication portion of the form he indicated the action was by his order but did not indicate whether he was the successor in command to the imposing commander, the officer who imposed the punishment, or a superior authority.

20.  The DA Form 2627-2 did not include an attached detailed addendum outlining unusual circumstances.

21.  Counsel provides an email from CW2 RS, dated 13 December 2011, which was sent to the applicant.  The email stated that after inquiring with the HRC Junior Enlisted Promotions Branch, the Army would not reinstate him to SGT because LTC DAL set aside the punishment more than 4 months after it was imposed.  She further told him to inform all personnel to stop contacting HRC or any other S-1's as this was the final answer to his questions and he would have to reappear before an E-5 board to regain his lost rank.

22.  Counsel provides a letter sent by his law firm to LTC DAL, dated 20 December 2011.  In this letter counsel reiterated the merits of the applicant's case and stated he would like to resubmit the applicant's request to HRC along with the addendum required when the 4-month period has been exceeded.  Counsel indicated in this letter that he had enclosed a copy of the necessary addendum.

23.  Counsel provides an email, dated 22 December 2011.  This email was sent by LTC DAL to counsel's office.  In this email, LTC DAL stated the applicant was no longer assigned to the 593rd SB and, as a result, he could take no further action with regard to the applicant.

24.  Army Regulation 27-10, paragraph 3-23 (Clemency), states the meaning of successor-in-command as used in paragraph 6a, part V, Manual for Courts-Martial:  a successor-in-command is the officer who has authority to impose the same kind and amount of punishment on a Soldier concerned that was initially imposed or was the result of a modification and who commands the unit to which the punished Soldier is currently assigned or attached, is the commander succeeding to the command occupied by the imposing commander, provided the Soldier still is of that command, or is the successor to the delegate who imposed the punishment, provided the same authority has been delegated under paragraph 3-7c to that successor and the Soldier is still of that command.  Any action of suspension, mitigation, remission, or setting aside taken by an authority will be recorded according to notes 11 and 12, DA Form 2627; notes 9 and 10, DA Form 2627-1; or DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ).

25.  Army Regulation 27-10, paragraph 3-28 (Setting Aside and Restoration), states that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is wholly set aside when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  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.  Clear injustice does not include the fact that 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.  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action.

26.  Army Regulation 27-10, paragraph 3-38 (Supplementary Action), states that in any action taken by an appropriate authority to suspend, vacate, mitigate, remit, or set aside a punishment (except punishment imposed under summarized proceedings) the supplementary action will be recorded on a DA Form 2627-2.  This copy will be filed in the same OMPF section location as the DA Form 2627 that initially imposed the punishment. The imposing commander's filing determination on the initial DA Form 2627 will be annotated on the DA Form 2627-2.  

27.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-14 (Restoration to Former Grade), states grade restoration may result from a setting aside, mitigation, or suspension of NJP.  Procedures and means of restoring grades and announcing these actions are set forth in Army Regulation 27-10.

DISCUSSION AND CONCLUSIONS:

1.  Counsel essentially argues the applicant unjustly received NJP under Article 15 of the UCMJ for providing alcohol to a minor.  Additionally, he contends that the part of the punishment that was suspended, a reduction in rank to SPC, was vacated based on inaccurate and false statements made in a counseling form which concluded by recommending the suspended portion of the punishment be vacated.

2.  Further, counsel argues the applicant was unable to request a set-aside action or collect the necessary supporting documents in a timely fashion because he was deployed to Afghanistan.

3.  The facts surrounding his reduction are as follows:

	a.  he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully distributing alcohol to a minor, indicated on the form that he did not request a trial by court-martial, and elected not to appeal.  The imposing commander directed filing the original DA Form 2627 in the restricted section of the applicant's OMPF;

	b.  the battalion commander and imposing officer vacated the suspension, effectively reducing him to SPC on 24 November 2010 and directed filing the DA Form 2627-2 in the restricted section of the applicant's OMPF; and

	c.  the DA Form 2627, DA Form 2627-2, and reduction orders, of which there is no record, are not filed in his OMPF.

4.  The applicant formally requested that his new battalion commander (the imposing commander's successor-in-command) set aside his Article 15 and restore his rank to SGT/E-5 while he was home on leave from Afghanistan.

	a.  he provided additional evidence and documentation that he felt had been over looked along with his formal request;

	b.  based on the evidence, the successor-in-command granted the set-aside action and indicated the applicant's rank should be restored to SGT; and

	c.  the request exceeded the 4-month time period, was improperly completed, and did not include the necessary addendum required to waive the 4-month period.

5.  The Article 15 is not in his Official Military Personnel File.  The set aside action could be considered defective because the reasons provided indicates the set aside action was based on post Article 15 performance.  Army Regulation states that post Article 15 performance is not included in the definition of "clear injustice."  

6.  Furthermore, set aside actions occurring more than 4 months after the execution of punishment requires a detailed addendum of unusual circumstances.  This addendum is not present in the record.  However, even with the defects stated above, the commander intended to set aside the Article 15 and restore the applicant's rank.

7.  As the successor-in-command and promotion authority, the new battalion commander had the authority to approve the set-aside action and the restoration of rank.  Army regulation gives him the full authority to complete and approve these actions locally at his level.

8.  When the set-aside action was received by the battalion S-1, a CW2 who worked there stated she inquired with HRC and was told the Army would not reinstate him to SGT because the battalion commander set aside the punishment more than 4 months after it was imposed.  She further told him to inform all personnel to stop contacting HRC or any other S-1's as this was the final answer to his questions and he would have to reappear before an E-5 board to regain his lost rank.

9.  It is clear that the Soldier and the chain of command were provided poor and inaccurate advice.  HRC did not have the authority to approve or disapprove this action.  The full authority rested with the battalion commander.  The action needed to be adjusted and was missing the addendum.  The CW2 in the S-1 had a professional obligation to research the action to ensure it was completed properly and in accordance with regulation.  It was her duty to ensure the intent and wishes of her commanding officer were carried out as well.

10.  The delays in processing the set-aside request were as a result of the applicant's deployment, the S-1's failure to follow through on the action to make sure the request was properly and appropriately processed, and the S-1's failure to properly interpret the regulation.

11.  The S-1 delayed the action until the applicant was reassigned and no longer under the control of the battalion commander who could no longer take action to process the action.

12.  These delays and oversights demonstrate an error and injustice within the administrative process and, as such, the applicant is entitled to correction of his record to set aside the Article 15, restore his rank/grade to SGT/E-5, and reinstate his date of rank as 1 December 2009.

BOARD VOTE:

___x____  __x_____  __x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is, as a matter of equity, sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* setting aside his Article 15
* restoring his grade/rank to SGT/E-5
* reinstating his date of rank to 1 December 2009
* issuing him back pay and allowances in the grade of E-5 from 24 November 2010 to present



      ___________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)                                         AR20120002932



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ABCMR Record of Proceedings (cont)                                         AR20120002932



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