IN THE CASE OF:	  

		BOARD DATE:  10 January 2013

		DOCKET NUMBER:  AR20120015147 


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 his request and statement to counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests:

* reinstatement of the applicant's rank/grade to specialist (SPC)/E-4 retroactive to the date of reduction with full back pay and allowances
* removal of all documents referencing his administrative separation from the service from his records
* removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his records

2.  In the alternative, counsel requests:

* an upgrade of the applicant's discharge from general to honorable
* a change to the narrative reason for separation from misconduct to miscellaneous/general
* a change to his reentry eligibility (RE) code from RE-4 to RE-1

3.  Counsel states:

* the applicant was a second year medical student who wanted to serve his country – his advanced education and age set him apart from others
* he was a Reserve Component (RC) Soldier on active duty for training (ADT) at Fort Huachuca, AZ
* he was subjected to harassment by the cadre and the commander who tried to have him removed from the service on two occasions
* the treatment he suffered at the hands of his commander and noncommissioned officers constituted cruelty and maltreatment of subordinates motivated by a personal dislike of him
* some of the allegations in the Article 15 were not even violations of the UCMJ while others were very minor
* several Soldiers and witnesses attested to the applicant’s maturity, dedication, and abilities despite the poor command climate/cadre leadership
* the command failed in its duty to counsel and rehabilitate the applicant and violated numerous regulations
* the separation packet was not legally sufficient and violated his right to due process – the military attorney reviewed the separation for legal sufficiency 2 weeks prior to the commander getting it to the applicant
* the applicant was not given a chance to succeed; he was harassed, demoralized, and broken due to the command’s poor leadership

4.  Counsel provides a listing of his Table of Contents, consisting of 69 enclosures that include:

* multiple statements from the applicant and/or other Soldiers
* DA Form 2627, dated 14 June 2011
* multiple memoranda/emails related to the separation
* multiple developmental counseling forms
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* separation packet

CONSIDERATION OF EVIDENCE:

1.  With respect to upgrading the character of service, changing the narrative reason for separation and the RE code, and removing the administrative separation packet from his records:

	a.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), the regulation under which this Board operates, states that the Board will not consider any application if it determines that applicant has not exhausted all administrative remedies available to him.  There is no evidence the applicant petitioned the Army Discharge Review Board (ADRB) for a review of his discharge within that board's 15-year statute of limitations and was denied relief.

	b.  Since the ADRB has not yet rendered a decision regarding the propriety of his discharge, his request for the removal of the administrative separation packet from his records is also premature.

	c.  Per telephone conversation between the case analyst of record and the applicant's counsel on 3 January 2013, counsel was advised of the disposition of the applicant's case and concurred.  Therefore, the portion of this application that pertains to the character of service, narrative reason for separation, RE code, and removal of the separation packet, together with all the documentary evidence he or his counsel provides, was forwarded to the ADRB for consideration and therefore will not be discussed further in this Record of Proceedings.

2.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) in the rank/grade of SPC/E-4 on 19 October 2010.  He enlisted for standard training in military occupational specialty 35G (Imagery Specialist).

3.  He entered ADT on 18 January 2011.  He was assigned to Company A, 315th Military Intelligence Battalion, 111th Military Intelligence Brigade, U.S. Army Intelligence Center, Fort Huachuca, AZ.

4.  His records show he was frequently counseled by members of his chain of command for various infractions, including:

* 30 November 2011, dirty barracks room
* 9 December 2011, physical altercation with another Soldier
* 12 December 2011, inappropriate comment of a religious nature
* 19 December 2011, failing to maintain and carry a common access card
* 19 December 2011, being disrespectful toward a commissioned officer
* 19 December 2011, disobeying a lawful order from a superior noncommissioned officer 
* 6 January 2012, professional counseling regarding customs, courtesy, appearance, fitness, chain of command, and on/off duty conduct
* 11 January 2012, failing to follow an order
* 19 January 2012, not having a proper badge at a secure facility
* 24 January 2012, having a dirty room
* 27 January 2012, soliciting a prohibited relationship on Facebook
* 30 January 2012, inappropriate contact with a civilian/contractor
* 1 February 2012, failing to complete corrective training to standard

5.  On 27 January 2012 after having been afforded the opportunity to consult with counsel regarding his rights, the applicant declined trial by a court-martial and he accepted nonjudicial punishment (NJP) in an open hearing under the provisions of Article 15 of the UCMJ for:

* behaving in a disrespectful way toward a superior commissioned officer
* dereliction in the performance of his duties

6.  His punishment consisted of a reduction to private first class (PFC)/E-3, forfeiture of $439.00 pay, and 12 days of extra duty and restriction.  The imposing commander marked the filing instructions as "not applicable" since the applicant was an E-4 or below.  The applicant elected not to appeal his punishment.

7.  On or about 22 February 2012, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 14-12b of Army Regulation 635-200 (Personnel Separations) by reason of misconduct – pattern of misconduct.

8.  On 8 March 2012, the separation authority approved the separation action and directed his general discharge under honorable conditions.  On 13 March 2012, the applicant was discharged accordingly.  His DD Form 214 shows he was discharged under honorable conditions (general) under the provisions of Army Regulation 635-200, paragraph 14-12(b), due to a pattern of misconduct.  He completed 1 year, 1 month, and 26 days of creditable active service.

9.  A review of his Army Military Human Resource Record (AMHRR) – formerly known as the Official Military Personnel File – reveals the DA Form 2627 is not filed in the performance or the restricted section of his AMHRR.  However, it is part of the separation packet that is filed in his AMHRR.

10.  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 whom 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 filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's AMHRR 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.

	b.  Paragraph 3-37b(1) states that for Soldiers in the rank of SPC or corporal (CPL) and below (prior to punishment), the original will be filed locally in unit NJP or unit personnel files.  Such locally-filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 4b of the DA Form 2627 as "not applicable (N/A)."

	c.  Paragraph 3-43 contains guidance for transfer or removal of DA Forms 2627 from the AMHRR.  It states applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the ABCMR.  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.

11.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.  The AMHRR is an administrative record as well as the official permanent record of military service belonging to a Soldier.  It remains in Army control for 62 years from a Soldier's final separation date and is transferred to the control of the National Archives and Records Administration (NARA) upon the 63rd year.  The AMHRR is the historical and authoritative source for authentication of veteran or service-related benefits, entitlements, and services.  The purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.  Appendix B provides for documents authorized for filing in the AMHRR and/or the Interactive Personnel Electronic Records Management System.  Table B-1 states:

	a.  The DA Form 2627:  All UCMJ Article 15 documents and forms will be filed in accordance with Army Regulation 27-10.  No UCMJ Article 15 or supporting documents will be filed for E-4/CPL and below.  For all other Soldiers, different instructions apply.
	b.  The record of discharge or release from active duty is filed in the service section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant violated the UCMJ and subsequently accepted NJP on 27 January 2012 for various infractions.  During an open Article 15 hearing after considering all the evidence, the commander administering the Article 15 proceedings determined the applicant committed the offenses in question.  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.

2.  The applicant had the opportunity to decline the Article 15 and demand trial by court-martial at the time it was issued.  He did not do so.  A commander's decision cannot or should not be reversed without compelling evidence it was unlawful or egregiously unfair.  The applicant has presented no such evidence.

3.  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.  The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and was afforded the opportunity to appeal the Article 15 through the proper channels.  He elected not to appeal his punishment.

4.  He and his counsel did not provide convincing evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings.  The argument that counsel raises is not sufficient to change the determination of guilt made by the commander.  Additionally, his dissatisfaction with the outcome of this Article 15 does not invalidate it.  He violated the UCMJ and he was punished for it.  The resultant action was a reduction to PFC/E-3.  Any negative impact of this NJP appears to be a natural result of his actions.

5.  His NJP proceedings were conducted in accordance with law and regulation.  There is neither an error nor an injustice and there is no reason to set aside the Article 15 or restore his rank.  There is no evidence of record and the applicant provides insufficient evidence to show the DA Form 2627 is untrue or unjust.

6.  The Article 15 is not filed in his AMHRR as a separate document.  Since the applicant held the rank of SPC or below prior to punishment, the imposing commander correctly annotated the filing instructions as "N/A."  However, it is correctly filed as part of his separation packet in his AMHRR.  The separation packet is also correctly filed in his AMHRR as required by the governing regulation.

7.  The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts.  Once placed in the AMHRR, the documents become a permanent part of that file and will not be removed from or moved to another part unless directed by an appropriate authority.

8.  Therefore, he is not entitled to relief in this case.

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 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)                                         AR20120015147



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ABCMR Record of Proceedings (cont)                                         AR20120015147



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