IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120012650


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 correction of his military records by removing his record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) from his Official Military Personnel File (OMPF) and restoring his rank to staff sergeant/E-6.

2.  The applicant states, in effect, he was targeted by his chain of command and his medical issues were overlooked.
 
3.  The applicant provides copies of:

* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) dated in September 2011
* Chronological Record of Medical Care forms dated 9, 10, 15, 23, 24, 25, and 31 August 2011
* DA Form 3349 (Physical Profile) dated 8 September 2011
* Memorandum for Surgical Care, dated 15 September 2011
* Developmental Counseling Forms dated 19 and 22 (2) August 2011
* Inspector General Action Request, dated 26 August 2011
* reassignment memorandum and orders
* telephone call listing in Korean

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a sergeant/E-5.
2.  On 13 June 2011, the applicant, then a staff sergeant/E-6, accepted NJP for violation of Article 86 (absence from place of duty); Article 90 (willfully disobeying a superior commissioned officer); Article 91 (willfully disobeying a noncommissioned officer); and Article 115 (feigning illness to avoid his duties for an annual training exercise).  The NJP further shows:

	a.  he did not demand trial by court-martial;

	b.  he requested an open hearing and to have someone speak on his behalf; and

	c.  he indicated that matters in defense, extenuation, and/or mitigation would be presented.

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

* Reduction to sergeant, pay grade E-5
* Forfeiture of $1,482.00 pay per month for 2 months (suspended, if not vacated before 13 December 2011)
* Extra duty for 45 days
* Restriction to the limits of United States Army Garrison-K-16, and United States Army Garrison-Yongsan medical facilities for 45 days
* Oral reprimand

4.  In his 16 September 2011 appeal the applicant stated:

	a.  the charges of his failure to go to his appointed place of duty on time and willful failure to obey an order were the result of conflicts stemming from his visits to the medical clinic and instructions from the medical personnel.  On 19 August 2011, the company commander ordered him to go to the emergency room, but as he had an appointment for follow up for the condition scheduled for 31 August 2011 he did not go.  He had a conversation with the commander and was under the impression he no longer had to go to the emergency room.  He was unable to report for duty at the training exercise because of his medical issues and he tried to communicate this to his commander and the exercise point of contact.

	b.  he had over 14 years of active duty service and he had never received an Article 15 or negative counseling.  He did not believe the punishment fits his actions.  He stated he could accept the restriction and extra duty but the reduction to sergeant would directly affect his ability to serve as he would be near his retention control point. 
	c.  the company commander and first sergeant took it upon themselves to evaluate and "dictate" his medical conditions.

5.  On 21 September 2011, the applicant's appeal was denied.

6.  A review of the applicant's OMPF failed to find any documentation of the subject NJP or any related documents.  

7.  Under the UCMJ, the maximum punishments allowed for violation of Articles 90 and 91 include a dishonorable or bad conduct discharge.

8.  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, and Part V, MCM (Manual for 
Courts-Martial).  Paragraph 3-18(1) 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, in pertinent part, 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. 

9.  Paragraph 3-37b(1)(a) of the military justice regulation states, in pertinent part, that the decision whether to file a record of NJP in the performance section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP 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 Army Board for Correction of Military Records (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the DA Form 2627 in question from his OMPF because the NJP was unjust and to reinstate his rank of SSG/E-6 has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  Notwithstanding the applicant's rationalization, he willfully disobeyed a lawful order and the maximum punishment includes a dishonorable or bad conduct discharge if tried by court-martial.

3.  By regulation, 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.

4.  The evidence of record confirms the applicant's Article 15 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 offense.  There is no evidence of record or independent evidence provided by the applicant that would call into question the validity of this decision by the imposing commander.

5.  Further, the applicant's appeal of the reduction punishment was properly processed and considered in the appellate process by the proper appellate authority.  The evidence submitted by the applicant was either included, or available for him to include in his appeal of the NJP and it does not support revising the appeal authority's decision.

6.  The governing regulation requires that there must be evidence the document is untrue or unjust in whole or in part in order for the ABCMR to support removal of a properly completed, facially-valid DA Form 2627 from a Soldier's record.

7.  Absent evidence of an error or injustice in the Article 15 processing or the appellate process, the regulatory burden of proof necessary to set aside the Article 15 or to remove it from the applicant's OMPF has not been satisfied in this case.  As a result, there is an insufficient evidentiary basis to support removal of the Article 15 from the applicant's OMPF or reinstatement of his rank to SSG/E-6.

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)                                         AR20120012650



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