IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120008325 


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 nonjudicial punishment (NJP) dated June 2011 from his Official Military Personnel File (OMPF), restoration of his promotion status, the promotion he would have received, and reimbursement of lost pay.

2.  The applicant states, in effect, he was found guilty of falsely reporting that he had all of his Table of Allowances (TA) 50 (Army-issued individual equipment) which resulted in him receiving an NJP.  He argues that his statement was misunderstood.  He had all of his TA-50; he was reporting an item that he had borrowed from another Soldier was missing.

3.  The applicant provides copies of:

* DA Form 2823 (Sworn Statement), dated 27 April 2011
* DA Form 2627 (Record of Proceedings Under Article 15, (Uniform Code of Military Justice (UCMJ)), dated in June 2011
* Memorandum for Record, appeal of Article 15, dated 16 June 2011
* DA Form 2823, dated 16 June 2011
* Memorandum for Record, Assumption of Command, dated 22 June 2011
* DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ), dated 30 June 2011
* Memorandum, Request for Set-Aside and Restoration, dated
22 September 2011


CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a specialist /E-4.

2.  A DA Form 2823 provided by the applicant, written by a sergeant first class (SFC)/E-7, dated 27 April 2011, states, in essence, that on or about 24 March 2011, 23 Soldiers to include the applicant had to have their bunks and gear moved to make room in the tent for additional Soldiers from another unit.  At no time did the SFC observe any personnel from any other unit come into contact with the applicant's gear.  At the time of this move, the applicant was out on a mission.  There was no mention of any missing gear after the move.  On 
27 March 2011, the applicant received orders and left Fort Irwin.  On 29 March 2011, while loading equipment for the return trip to the home station, an inquiry was made in regard to the applicant's missing some equipment.  The SFC asked a couple of Soldiers if the applicant had said anything about missing any equipment.  The response was that he had been missing one item but had borrowed a similar item from another Soldier.  When the SFC returned to the home station he was further told the applicant had lost a piece of equipment during his rotation to training at Fort Irwin.  The SFC was also told the applicant had an incomplete piece of equipment at home and he would have to do a report of survey.

3.  On 13 June 2011, the applicant, then a sergeant (SGT)/E-5, accepted NJP for falsely reporting on or about 30 March 2011 that he had all of his TA-50.  The NJP further shows the applicant:

* did not demand trial by court-martial
* requested an open hearing and to have someone speak on his behalf
* indicated that matters in defense, extenuation, and/or mitigation would be presented

4.  On 14 June 2011, the imposing commander found the applicant guilty of the above charge and directed the DA Form 2627 be filed in the performance section of his OMPF.  The following punishment was imposed:

* reduction to specialist /E-4 (suspended, if not vacated before 7 July 2011
* a forfeiture of $1,000.00 pay pay for 2 months
* extra duty for 24 days
* restriction to the limits of the Company Area, dining/medical facility, place of worship, place of duty, and the North Fort, unless escorted by a noncommissioned officer (NCO)
* Oral reprimand
5.  The commander also advised the applicant of his right to submit an appeal to the next superior authority within 5 calendar days.  An appeal made after that time may be rejected as untimely.  The applicant indicated his desire to submit such an appeal.

6.  In a Memorandum for Record, subject: Appeal of Article 15, dated 16 June 2011, the applicant stated that:

	a.  he was found guilty of the charge of signing a clothing record on 30 March 2011, in which he stated he was in possession of all issued gear;

	b.  on the following day he filled out a sworn statement saying he was missing one item;

	c.  his first sergeant and SFC had asked for the maximum penalties allowed;

	d.  his platoon leader and section sergeant asked that he be given 24 days of extra duty, and that all other punishments be suspended;

	e.  he had received a suspended reduction to specialist and restriction to North Fort; extra duty for 24 days; and a forfeiture of $1000.00 pay for 1 month;

	f.  included in the NJP were statements reporting that he borrowed a piece of equipment from another Soldier for use during training, which he replaced and cleared through the Central Issue Facility;

	g.  there were negative counseling's on 10 May 2011 and a sworn statement indicating he had left a threatening voicemail for a Soldier, all unrelated to the charges, which were put there to increase the size of the packet and to prejudice the NJP outcome;

	h.  he stated he was guilty of signing the document indicating he had all of his gear and he should receive some level of punishment but he had no intent of defrauding anyone;

	i.  he has never been in trouble here and he has performed well for the unit and the Soldiers, as verified by his performance evaluation;

	j.  he has been punished several times for his mistake, to include his leave being denied, which meant he could not receive his Bachelor's Degree from Eastern Connecticut State University on 21 May 2011.  When he departed this unit he would have only 4 days to report to his next duty station, which was in Germany; therefore, he had little time to spend with his family who were in Washington State; and

	k.  he would not be receiving an award when he departed the unit and the $1000.00 fine that he received would cause him to be indebted to the government for several months and affect his wife and two sons.

7.  On 30 June 2011, the NJP was reviewed and found to be in accordance with law and regulation and the punishment was neither unjust nor disproportionate to the offense committed.

8.  On 30 June 2011, the applicant's appeal was denied.

9.  A DA Form 2627-2, dated 30 June 2011, shows the suspension of the punishment of reduction to specialist /E-4 was vacated because he, without authority, failed to go to his extra duty from on or about 26 to 29 June 2011.

10.  In a memorandum, dated 22 September 2011, the applicant requested that his battalion commander set aside his NJP and restore his rank.  He provided a senior defense counsel as his point of contact.  There is no evidence that this request was ever submitted through or acted upon by his chain of command.

11.  A review of the applicant's OMPF failed to reveal any documentation of the subject NJP or any related documents.  On file were a:

	a.  DA Form 2166-8 (NCO Evaluation Report (NCOER)) ending on 31 July 2010, showing the applicant as a SGT with a date of rank of 1 May 2004; and

	b.  DA Form 2166-8, commencing on 1 August 2010 and ending on 30 June 2011, showing his rank as specialist with a date of rank of 30 June 2011.

12.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. Chapter 3 implements and amplifies Article 15, UCMJ.

	a.  The decision to file the original DA Form 2627 in the performance or restricted section of the OMPF will be determined by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is final and will be indicated on the DA Form 2627.

	b.  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 which clearly and affirmatively injured the substantial rights of the Soldier.  The power to set aside an executed punishment and to mitigate a reduction in grade or 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 the 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his OMPF should be corrected by removing the record of NJP, his rank should be restored with reimbursement for lost pay, and he should be promoted as he otherwise would have.

2.  A review of the applicant's OMPF failed to show any record of the subject NJP on file.  However, his NCOER does indicate that he had been reduced on the same day that the DA Form 2627-2 shows his suspended reduction was vacated.

3.  The applicant's request dated 22 September 2011, wherein he asked his battalion commander to set aside his NJP and restore his rank, does not appear to have been processed.  There is no evidence in the applicant's OMPF showing the imposing commander or a higher authority took any action on this matter.

4.  Furthermore, there is no evidence of record showing that he had been recommended for promotion to staff sergeant/E-6 or that he was on a recommended list for such a promotion at any time prior to his NJP.  Therefore, even if there was sufficient evidence to show his NJP should be set aside, there is insufficient evidence showing he was improperly denied promotion to E-6.

5.  The evidence, as provided by the applicant, suggests the NJP was properly imposed against him in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that would have jeopardized his rights.

6.  The evidence also suggests that he was afforded due process in that he was afforded the opportunity to consult with counsel and elect trial by court-martial in lieu of accepting NJP.  He admitted in his Article 15 appeal that he was guilty fo signing the document indicating he has all of his gear.

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)                                         AR20120008325



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ABCMR Record of Proceedings (cont)                                         AR20120008325



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