IN THE CASE OF:	  

		BOARD DATE:	    26 April 2012

		DOCKET NUMBER:  AR20120005228 


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;

* reinstatement of his date of rank (DOR) to staff sergeant (SSG)/E-6 to 1 January 2001
* removal of the annual DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), dated 6 March 2009, covering the rating period 1 March 2008 through 28 February 2009 [hereafter referred to as the contested NCOER] from his records
* administrative correction to two subsequent NCOERs to show the correct DOR

2.  The applicant states:

* he received nonjudicial punishment (NJP) under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ) on 2 March 2009
* the NJP was strategically planned in the form of a malicious attack by his battalion commander and battalion command sergeant major
* his chain of command felt he lied about his suicidal ideation that occurred on 5 August 2008
* at the time, he stepped forward and informed his chain of command of the problems he was having with his fiancé before his divorce
* the issue remained quiet until he was ready to proceed on a permanent change of station
* he signed the NCOER that his rater submitted and when he went to see his battalion commander, he was informed that he staged his suicide attempt
* there was no time to fight the NJP because he had made other plans which would have resulted in a financial loss if he stayed longer
* he signed the UCMJ action and he was challenged by his battalion commander to prove that his suicidal attempt was true (i.e. prove that he intended to die)
* the battalion commander blatantly lied when he stated that the doctor had told him the applicant admitted to lying, when in fact it was the battalion commander who told the doctor what he believed
* he and his former spouse had been separated and were living in different cities while their divorce was in process
* the battalion commander then instructed someone to retype the contested NCOER 
* even the Commanding General (CG), U.S. Army Recruiting Command (USAREC) believed he was a disgruntled enlisted Soldier crying wolf

3.  The applicant provides:

* Original NCOER, dated 23 February and 2 March 2009
* Contested NCOER, dated 6 March 2009
* Memorandum for Record by the applicant's battalion commander
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* Article 15 appeal
* Various medical documents, including mental evaluation, referral, chronological records of medical care, progress notes, and other medically-related documents
* USAREC CG's email denial of his Article 15 appeal

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 24 March 1993 and he held military occupational specialty 79R (Field Recruiter).  He served through multiple reenlistments in a variety of stateside and/or overseas assignments and he was promoted to SSG/E-6 on 1 January 2001.

2.  At the time of the contested NCOER, he was assigned to the U.S. Army Recruiting Battalion, Montgomery, AL, with duty in Eastwood, AL, as a field recruiter.  His rater was the station commander, Sergeant First Class (SFC) MCH; his senior rater was the first sergeant (1SG), 1SG KDC; and his reviewer was the company commander, captain (CPT) RLP.

3.  During the month of February 2009, the applicant received an annual NCOER for his duties as a field recruiter that covered 12 months of rated time from 1 March 2008 through 28 February 2009.  This NCOER shows in:

* Part IVa (Army Values) the rater checked the "Yes" blocks for all values
* Part IVb (Values/NCO Responsibilities – Competence) the rater checked the "Excellence" block
* Part IVc (Values/NCO Responsibilities – Physical Fitness and Military Bearing) the rater checked the "Success" block
* Part IVd (Values/NCO Responsibilities – Leadership) the rater checked the "Excellence" block 
* Part IVe (Values/NCO Responsibilities – Training) the rater checked the "Excellence" block
* Part IVf (Values/NCO Responsibilities – Responsibility and Accountability) the rater checked the "Success" block
* Part Va (Overall Performance and Potential – Rater) the rater checked the "Among the Best" block and entered three positions in which the applicant could best serve the Army at his current or next higher grade
* Part Vc (Overall Performance and Potential – Senior Rater – Overall Performance) and in Part V(d) (Overall Performance and Potential – Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) the senior rater checked the "Successful" block
* Part Vd (Senior Rater – Overall Potential), the senior rater checked the "Superior" block

4.  This NCOER was signed by the applicant's rating officials on 28 February 2009 and by the applicant on 2 March 2009.  However, it was never filed in his Official Military Personnel File (OMPF).

5.  The applicant's battalion commander submitted a memorandum for record wherein he stated:

	a.  He received a call from the company commander stating the applicant's wife had called him and informed him the applicant had withdrawn all the money from their bank account and that he told his wife he had bought a shotgun and was going to kill himself.  He then abandoned his place of duty without telling anyone of his whereabouts.

	b.  The chain of command alerted local police and after conducting a search, the applicant was found in a trailer with his girlfriend who stalled the search party until the applicant was able to run out of the back door. 

	c.  A search continued and he was ultimately reached by cell phone during which he blurted out that he was committing adultery with his girlfriend and that his wife was unwilling to give him a divorce.  He also stated he had left the office without permission and purchased a shotgun to kill himself.

	d.  the next day, his chain of command talked to him for hours and he stated he had sent his wife nude pictures of himself and his girlfriend but she would not give him a divorce.  He sounded cocky and arrogant and he was referred for a mental status evaluation.

	e.  the doctor told the battalion commander that the applicant had told her he never purchased a shotgun and that he had concocted the whole story to scare his wife. 

	f.  it was obvious the applicant escalated an argument with his wife into a false threat of planned suicide.  He was later cleared by mental health personnel and returned to duty. 

6.  On 6 March 2009, at a closed hearing, the applicant waived his right to a court-martial and accepted NJP under the provisions of Article 15 of the UCMJ for:

* Leaving his appointed place of duty without authority on 4 August 2008
* Making a false official statement that he bought a shotgun and intended to kill himself
* Wrongfully having sexual intercourse with a woman not his wife

His punishment consisted of a reduction to sergeant (SGT)/E-5.  He elected not to appeal his punishment.  The Article 15 is not filed in his OMPF.

7.  Subsequent to receiving his NJP, the applicant received the contested annual NCOER for his duties as a field recruiter that covered 12 months of rated time from 1 March 2008 through 28 February 2009.  This NCOER shows in:

* Part IVa the rater checked the "No" blocks for "Duty," "Honor," and "Integrity" and entered the comments –

* left appointed place of duty without permission
* failed to demonstrate integrity by making a false official statement
* stood firmly on convictions
* 
Part IVb, rater checked the "Success" block
* Part IVc, the rater checked the "Excellence" block
* Part IVd, the rater checked the "Needs Improvement (Much)" block and entered the comments –

* failed to set the example for Soldiers to follow by misleading the chain of command and NCO support channels
* displayed a lack of concern for fellow Soldiers by leaving appointed place of duty without permission

* Part IVe, the rater checked the "Success" block
* Part IVf, the rater checked the "Needs Improvement (Much)" block and entered the comments –

* demonstrated a lack of responsibility to adhere to Army standards
* could not be counted on to choose the proper course of action when confronted with an ethical dilemma

*  Part Va, the rater checked the "Marginal" block and entered three positions in which the applicant could best serve the Army at his current or next higher grade
* Part Vc, the senior rater checked the "Successful" block and in Part Vd he checked the "poor" blocks and entered the following comments in Part Ve–

* do not promote at this time
* successfully performed recruiting duties but failed to display sound judgment in personal-related matters
* do not place in positions of increased responsibility 

8.  The contested NCOER was signed by the applicant's rating officials and the applicant on 6 March 2009.  It was filed in his OMPF shortly thereafter.

9.  There is no indication he appealed the contested NCOER to the Enlisted Special Review Board.

10.  In or around March 2009, the applicant was reassigned to the 125th Fire Company, 1st Battalion, 94th Field Artillery Regiment, Joint Base Lewis-McChord, WA.  

11.  On 9 October 2009, the CG, USAREC, denied his request to set aside the punishment.  The CG, USAREC, informed him that he had reviewed the facts surrounding his Article 15 and that the power to set aside a reduction can only be exercised within 4 months of the punishment's execution.  The CG added that from the facts presented, he did not find any unusual circumstances to warrant setting side or mitigating his reduction almost 7 months after imposition.  The applicant admitted to adultery, he was afforded an opportunity to consult with counsel, he agreed to accept the NJP, and he did not appeal.  The CG concluded that even if he had filed his request within 4 months, he (the applicant) would have had to establish that the imposed punishment resulted in a clear injustice in the form of a legal or factual error that existed and clearly injured his rights.  There was none in his case.  Accordingly, the CG denied his request to set aside or mitigate his reduction.

12.  During the months of February 2010 and February 2011, he received two consecutive NCOERs, each of which listed his rank as "SGT" and his DOR as "20090306."

13.  He was promoted back to SSG/E-6 on 1 April 2011.  

14.  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 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.  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 3-28 describes setting aside and restorations. This 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.  

	c.  Paragraph 3-37b(2) states that for Soldiers in the ranks of sergeant 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, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that 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.

15.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting 

System.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a favorable annual NCOER that covered 12 months of rated time from 1 March 2008 through 28 February 2009.  This NCOER was digitally signed by the applicant and his rating officials.  However, it was not forwarded to Headquarters, Department of the Army for filing in his OMPF.

2.  It appears that as his NCOER was being processed, information surfaced about the applicant's misconduct that resulted in his acceptance of NJP for adultery, abandoning his appointed place of duty, and making a false official statement.

	a.  The available evidence confirms the commander administering the
Article 15 proceedings determined the applicant committed the offenses in question during a closed Article 15 hearing after considering all the evidence submitted by the applicant.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  The applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing.  

	b.  The applicant violated the UCMJ and subsequently accepted NJP on 6 March 2009 for various infractions.  He elected not to appeal his punishment to the next higher commander.  His NJP proceedings were conducted in accordance with law and regulation.  There is no evidence of record and the applicant provides insufficient evidence to show that the DA Form 2627 is untrue or unjust.

	c.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  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.

	d.  The applicant was informed of his right to consult with a defense counsel, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal his punishment through the proper channels.  The evidence submitted by the applicant is not sufficient to change the determination of guilt made by the commander.

	e.  In fact, even after his departure from the command, he petitioned the CG, USAREC, to set aside his punishment.  However, his request was denied as the CG could not determine that the imposed punishment resulted in a clear injustice in the form of a legal or factual error that existed and clearly injured the applicant's rights.

	f.  The basis for any setting aside action is a determination that, under all the circumstances of the case, the punishment 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.  There is none in his case.  It is noted that the applicant does not appear to be contesting the adultery charge.

3.  As this information surfaced and the applicant accepted the NJP, his rating officials appear to have withdrawn the incomplete/unprocessed NCOER and rendered a revised NCOER that reflects the additional information.  The contested report appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.

4.  There is no evidence the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested NCOER or that they exercised faulty judgment in evaluating him as they did.

5.  The applicant did not provide evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  There is insufficient evidence to grant him the requested relief.

6.  He received two subsequent NCOERs from March 2009 through February 2010 and March 2010 through February 2011.  Both reports reflected his correct rank of SGT and DOR of 6 March 2009.  He was not promoted to SSG until
1 April 2011.  His current DOR to SSG is outside and subsequent to the through date of either report.  As the Board has not set aside his reduction by Article 15, an administrative correction to his rank and DOR is not warranted. 

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)                                         AR20120005228



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ABCMR Record of Proceedings (cont)                                         AR20120005228



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