IN THE CASE OF:	  

		BOARD DATE:	  11September 2012

		DOCKET NUMBER:  AR20120013447 


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 of the Uniform Code of Military Justice (UCMJ)) dated 23 February 2009 from her official military personnel file (OMPF) and restoration of her rank/grade as a sergeant (SGT)/E-5.

2.  The applicant states:

* She was not allowed to exercise her right as a hospital patient
* She did not intentionally disrespect a noncommissioned officer (NCO)
* Her actions were the result of not being in the right state of mind
* She did not find the food in Korea appealing and she was unable to digest it; she requested a special food allowance but she was denied
* She blacked out and went to a hospital where she complied with several medical tests but refused to have her blood drawn because it was painful
* She was informed by her brother-in-law that it was not standard to draw blood from the wrist because of the risk of puncturing an artery
* She is now suffering from hypokalemic and is working on this issue
* She apologizes for her behavior at the hospital and admits that there was no excuse for it; she was simply tired, exhausted, and wanted to rest
* She did not mean to disrespect her detachment sergeant whom she knows was only trying to help
* The punishment of reduction to specialist (SPC)/E-4 she received was too harsh


3.  The applicant provides the following documents:

* Contested Article 15
* Self-authored article from a junior member of her squad
* Character reference letter
* Recommendation for restoration of rank
* Three-day pass certificate
* DA Form 2166-8 (NCO Evaluation Report)
* Certificate of appreciation
* Certificates of training
* DA Form 2627, dated 5 August 2011
* Multiple DA Forms 4856 (Developmental Counseling Form)
* Multiple DA Forms 2823 (Sworn Statement)
* DA Form 31 (Request and Authority for Leave)
* Medical document
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* Memorandum, dated 19 July 2011, Subject: Request for Preparation of Nonjudicial punishment
* Enlisted Record Brief
* 2011 W-2 Tax Form
* Internet printout about drawing blood

CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the Regular Army, U.S. Army Reserve, and the Army National Guard, the applicant enlisted in the Regular Army in the rank/grade of SPC/E-4 on 2 November 2006.  She held military occupational specialty 44C (Financial Management Technician).

2.  She served through a reenlistment and she was promoted to SGT/E-5 on 1 April 2009.  She was assigned to C Detachment, 176th Financial Management Company, Korea, from 11 January 2010 to 10 January 2012.

3.  It appears that she was taken to the emergency room and hospitalized at Yeungham University Hospital between 30 June and 4 July 2011 after she had fallen out of formation during a change of command ceremony.  It also appears that during her hospitalization, she:

* was unprofessional, argumentative, uncooperative with and combative toward medical staff
* disregarded medical advice/care and displayed a disruptive behavior
* refused to give blood or undergo necessary examinations
* kept intervening with the medical treatment
* was reminded repeatedly to cooperate with the doctors
* left her hospital room before the doctors formally discharged her
* disrespected and disobeyed her chain of command 

4.  She provides multiple counseling forms and/or sworn statements that show she was counseled by members of her chain of command for disrespecting an NCO, insubordinate conduct toward a warrant officer and/or NCO, and failing to obey an order or regulation.  

5.  On 23 August 2011, at a closed hearing, she elected not to be tried by a court-martial and she accepted NJP under the provisions of Article 15 of the UCMJ for:

* being disrespectful in deportment toward a senior NCO by putting up a sign saying "no visitors allowed especially your sergeant first class M----"
* being disrespectful in deportment toward another sergeant by rolling her eyes when told that putting the sign on the door was taking it too far

Her punishment consisted of reduction to SPC/E-4, a forfeiture of $500.80 pay per month for 2 months (suspended), extra duty for 45 days (suspended).  The imposing officer ordered this Article 15 be filed in the restricted section of her OMPF.

6.  On 23 August 2011, she appealed her punishment to the higher commander; however, after consideration of all matters presented, the next higher commander denied her appeal.

7.  Neither the contested Article 15 nor any supporting allied documents are filed on her OMPF.  However, her Enlisted Record Brief and NCO Evaluation Report clearly show she was reduced to SPC/E-4 on 23 August 2011.  

8.  She submitted the following documents:

	a.  A statement from a junior member who describes the applicant as a caring leader.

	b.  A character reference letter, dated 19 August 2011, from an Army chaplain who worked with her in Kuwait and describes her as a positive and a professional NCO who is committed to the Finance Corps.

	c.  A recommendation memorandum, dated 22 May 2012, from an Army lieutenant colonel, who describes her as a knowledgeable and highly motivated Soldier. He asks the Board to overlook the applicant's error in judgment and bestow upon her the level of trust and confidence a Soldier of her caliber deserves. 

	d.  A company certificate authorizing her a 3-day pass from 21 to 24 May 2012.

	e.  A DA Form 2166-8 for the rating period 1 April 2010 through 10 December 2010 that shows she received a "fully capable" rating by her rater and a "successful"/"superior" rating by her senior rater. 

	f.  A certificate of achievement for participation in Exercise Key Resolve 2011 from 28 February to 10 March 2011. 

	g.  A certificate of training showing completion of the Equal Opportunity Leaders Course from 9 to 16 May 2011.

	h.  A certificate of training showing completion of the Resilience Training Module from 14 to 17 February 2011. 

	i.  DA Form 31, dated 4 July 2011, showing she was placed on convalescent leave from 4 to 10 July 2011. 

	j.  Post hospitalization instructions, 2011 W-2 form, and a printout about needles/drawing blood. 

9.  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, in pertinent part, 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 states 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 carefully weigh 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 contains guidance on notification procedures and explanation of rights.  It states the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15.  It further stipulates that the Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  It further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, to request to be accompanied by a spokesperson, to request an open hearing, and to examine available evidence.

	c.  Paragraph 3-37b (Filing of the DA Form 2627) states, for Soldiers in the rank of corporal (CPL) or specialist (SPC), pay grade E-4, and below (prior to punishment), the original will be filed locally in unit NJP or unit personnel files.  For all other Soldiers, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 on the performance section or the restricted section in 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 any superior authority.  However, the superior authority cannot direct that an Article 15 report be filed in the performance section that the imposing commander directed to be filed in the restricted section. The imposing commander’s filing decision will be indicated in item 4b of DA Form 2627.




DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant elected not to demand a trial by court-martial and chose to have her case disposed of through Article 15 proceedings at a closed hearing with her battalion commander.  She 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.  Her election to accept the Article 15 was simply her choice.  She was further afforded the opportunity to appeal and did so but her appeal was denied by the next higher commander.  There is neither an error nor an injustice during the processing of his NJP.

2.  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, her case has already been adjudicated through the Army’s legal system and she was provided with the right to trial by court-martial and afforded the opportunity to appeal her punishment through the proper channels.  Here, the evidence submitted by the applicant is not sufficient to change the determination of guilt made by the commander.

3.  With respect to the filing of the DA Form 2627, this form is not currently filed in her OMPF.  The imposing commander appropriately directed a specific filing in her OMPF.  However, it appears it was not carried out.  

4.  The applicant violated the UCMJ and she was accordingly punished.  Her punishment included a reduction of one grade.  The punishment of reduction appears to be appropriate given her grade of SGT/E-5 and position as an NCO and leader.   There is neither an error nor an injustice in his NJP proceedings.  Therefore, she is not entitled to restoration of her rank/grade to SGT/E-5.

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)                                         AR20120013447





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ABCMR Record of Proceedings (cont)                                         AR20120013447



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