IN THE CASE OF:	  

		BOARD DATE:	  5 September 2013

		DOCKET NUMBER:  AR20120022726 


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, statement, and evidence to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of Army Board for Correction of Military Records (ABCMR) Docket Number AR20110004021 wherein the applicant requested restoration of his rank/grade to staff sergeant (SSG)/E-6.

2.  Counsel states he is providing new arguments and evidence that shows the applicant’s conviction by a summary court-martial (SCM) was improper and the reduction was unduly harsh.

3.  Counsel provides:

* a statement from the applicant, undated
* two DA Forms 1059 (Service School Academic Evaluation Report (AER)), dated 19 May 1999 and 19 August 2005
* seven DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER), dated between 15 August 2000 and 29 December 2005
* three DA Forms 2823 (Sworn Statement), dated 21 June 2006, 9 September 2006, and 27 April 2007
* a DA Form 3881 (Right’s Warning Procedure/Waiver Certificate), dated 11 September 2006
* two memoranda for record, dated 18 September 2006 and 12 November 2006
* twenty pages of email, dated between 5 December 2006 and 8 August 2012
* eleven memoranda, four undated and seven dated between 8 January 2007 and 19 August 2011
*  a Standard Form 600 (Chronological Record of Medical Care), dated 10 April 2008
* five letters, dated between 15 April 2009 and 13 December 2012
* ABCMR Record of Proceedings, dated 18 August 2011
* an Enlisted Record Brief, dated 3 August 2012
* page 1 of DA Form 638 (Recommendation for Award), undated
* eight certificates
* six orders
* a book titled Landigal

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110004021, on 18 August 2011.

2.  As new arguments Counsel states the applicant was the victim of toxic leadership and a poor command climate, he was denied the right to pursue an Article 69(b) appeal, and the loss of rank was too harsh a punishment.  Counsel further states:

   a.  The command climate of the applicant’s unit was so poor that the NCOs were left to mete out discipline and accomplish the mission in the only manner that was available to them.  The leadership problems up to the battalion level were egregious enough to place Soldiers at significant risk to life and limb and were well documented in the book "Landigal."  While the applicant’s actions may seem unjustified in hindsight, they were not only justified but necessary to avoid the death or injury of the alleged "victim" and other members of the platoon.  
   
   b.  The applicant joined A Company, 1st Battalion, 32nd Infantry, Fort Campbell, KY, in 2006 and walked into a situation that already presented a significant problem in terms of maintaining good order and discipline.  He was placed in the unit the day before the scheduled deployment because several NCOs had been relieved for misconduct.  At that time, he was a seasoned combat veteran with two deployments, no record of disciplinary action, and he had been previously revered by his superiors.
   
   
   c.  The unit was assigned to maintain contact and put pressure on the enemy in Korengal Valley, Afghanistan.  The applicant noted the apparent lack of experience of Captain (CPT) M_______, the company commander (CO), in that the platoons were frequently sent out on patrol without sufficient supplies and expected to cover unrealistically long distances in too short a time.  The applicant stated the leadership of the unit failed on numerous occasions to discipline problem Soldiers, leading to a breakdown of morale.  The applicant echoed the sentiments of many unit members in his reverence for CPT B____, the CO who took command of the unit after CPT M_______ was injured.

	d.  One Soldier, Private First Class (PFC) M________, was known as a problem Soldier.  He had been caught sleeping on duty, malingering, and verbally arguing in situations that could have compromised the platoon.  After repeated requests, the leadership failed to take any action against him and continued to send him out on patrol.  The applicant finally lost faith in the officer leadership to maintain discipline and verbal threats had not impressed the recalcitrant troop.  The sixth time PFC M________ refused to wear his night vision goggles, the applicant hit him in the face in order to impress upon him the seriousness of the situation.  PFC M________ was not injured and did not require medical treatment.

	e.  There was an investigation into the incident and the investigating officer (IO) also found there was an altercation between PFC M________ and another unit Soldier, Specialist (SPC) F___.  In response to the unprovoked attacks on SPC F___, the applicant reminded him that he could take whatever action was necessary to defend himself, and told him the applicant "had his back."  The IO interpreted this as the applicant requesting another person to commit an offense under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).

	f.  In accordance with 47 U.S. Code (USC), the accused may make application for review of a court-martial conviction to The Judge Advocate General (TJAG) within 2 years of the date the sentence is approved.  TJAG may modify or set aside in whole, or in part, the findings or sentence in a court-martial based on newly-discovered evidence, fraud on the part of the court, lack of jurisdiction over the accused or the offense, error prejudicial to the substantial rights of the accused, or the in appropriateness of the sentence. 

   g.  In the applicant’s case, he submitted an appeal under Article 69(b), UCMJ, to TJAG, through his attorney, on 6 November 2008, complaining he was denied the right to call witnesses and was interviewed by the IO in violation of his rights. 


   h.  In response, Lieutenant Colonel (LTC) H_____, the Staff Judge Advocate, 10th Mountain Division, Fort Drum, NY, and the supervisor of the 32nd Infantry Brigade’s judge advocate and legal counsel for the battalion commander, did a cursory investigation.  In other words, LTC H_____ investigated his own subordinates and the commanders they advised on matters concerning the appropriate exercise of military justice.  LTC H_____ also advised the command on the applicant’s administrative separation board and his trial counsel was the Government representative prosecuting the case.  This should have raised the appearance of bias and conflict of interest.  

   i.  LTC H_____ investigation was inadequate; he collected statements from some of the Soldiers involved but did not interview everyone he should have.  He used the applicant’s own clemency statement against him in finding harmless error, and the tone of his memorandum was accusatory.  The IO admitted to questioning the applicant in violation of his Article 31(b) rights but LTC H_____ found no violation.  He agreed the applicant was denied the right to call witnesses but deemed it a "harmless error" because the applicant testified on his own behalf admitting to hitting PFC M________.  Although LTC H_____’s memorandum indicated it was a recommendation, it formed the basis for TJAG’s denial.
   
   j.  On 29 January 2010, the applicant’s attorney complained that LTC H_____’s investigation was flawed and the applicant’s Article 69(b) appeal did not receive the attention it deserved.  TJAG had a CPT review the complaint and although he found merit to the complaint, he determined any error to be "harmless" and it was denied.
   
   k.  The Article 69(b) appeal stands as a check and balance on prosecutorial misconduct and prejudicial error and is the only avenue available to overturn an SCM conviction.  The judge advocate’s mission is to be the “honest broker” in maintaining strict adherence to the law and preserving the rights of our service members.  They are not entrusted with the job of “commander’s cheerleader.”  If the Article 69(b) process is inadequate, the service member convicted at an SCM has nowhere to go to appeal the conviction.  This conviction effectively ends the careers of NCOs like the applicant because they will not get promoted and will not progress with the conviction in their military records.
   
   l.  Considering the environment described by the applicant and in the book “Landigal,” his actions under the circumstances were justified and necessary to preserve good order, morale and discipline, and to safeguard the lives of the platoon.  To date the applicant has given 18 years and 8 months of service to his country.  He deployed to Honduras in 1998 and served the majority of his career in airborne units.  He has earned the Parachutist Badge, Combat Infantryman Badge, and airborne badges from Great Britain, Guatemala, Honduras, and El Salvador.  He has sustained numerous combat-related injuries but has never been awarded the Purple Heart.
   
3.  As new evidence Counsel provides an email dated:

   a.  31 July 2012, wherein MAJ L___ stated he had been the CO of E Company, 1st Battalion, 32nd Infantry.  The applicant was fine when he was in his unit but his previous unit was known for its toxic leadership.  He was not aware of any disciplinary problems in the unit being allowed to go unaddressed.  His assessment of the applicant was that he was a hard-charger and got the job done to the best of his abilities.  He did not have any disciplinary issues with PFC M_______ during his command and he thought the applicant was a great NCO who contributed a lot to the success of his unit.
   
   b.  8 August 2012, wherein Sergeant First Class H______ stated she was a medic and met the applicant when she was sent to work in A Company, 1st Battalion, 32nd Infantry, Aid Station, in Afghanistan.  She felt the CO, CPT M_______, did as he pleased and considered very little of his unit’s junior leadership’s advice.  She felt there was a general air of mistrust between the CO and the Soldiers and NCOs in the unit.  Disciplinary problems were addressed differently depending on who the guilty party was.  If you were a friend of the first sergeant (1SG) the punishment was light but if you were not the punishment was severe.  She thought the applicant was straightforward and professional.  He often sought her medical opinion of his Soldiers because of the difficult mission.  He did not want to take injured Soldiers on missions and did not want to compromise security by taking someone on patrol who could not perform as expected.  When the new CO took over it was like night and day; he took more advice from the NCOs.  
   
4.  The applicant’s records show he is currently serving on active duty.  He enlisted in the Regular Army on 3 December 1993 and he holds military occupational specialty (MOS) 11B (Infantryman).  He was promoted to the rank of SSG on 1 July 2004.  On 1 March 2006, he deployed to Afghanistan while assigned to A Company, 1st Battalion, 32nd Infantry.

5.  On 17 November 2006, court-martial charges were preferred against him for one specification each of 

* being disrespectful toward a senior NCO 
* maltreating a subordinate Soldier by punching him in the chin with his fist
* maltreating a subordinate Soldier by threatening to hit and beat him within one inch of his life
* wrongfully advising a subordinate Soldier to commit an assault by telling him "it's okay to hit Soldiers" 

6.  On 16 January 2007, an SCM convicted the applicant of maltreating a subordinate Soldier by punching him in the chin with his fist and wrongfully advising a subordinate Soldier to commit an assault.  He was sentenced to reduction to SGT/E-5 and the forfeiture of $1,291.00 pay for 1 month.

7.  On 16 January 2007, he was reduced to SGT.

8.  On 23 January 2007, the applicant appealed the SCM sentence.  On 2 February 2007, the Chief, Administrative Law conducted a legal review of the record of trial and concluded the sentence was legal.

9.  On 6 November 2008, the applicant submitted an Application for Relief under Article 69(b), UCMJ, appealing his SCM conviction.  

10.  On 15 April 2009, the Criminal Law Division, acting on behalf of TJAG, denied the appeal and affirmed the findings of guilty and the sentence.  The findings stated the applicant had not established a proper and specific basis for relief. 

11.  On 29 January 2010, the applicant, through counsel, submitted a complaint regarding his Article 69(b) appeal to the TJAG, Criminal Law Division, and asked for reconsideration.  

12.  On 29 July 2010, by memorandum, the Chief, Criminal Law Division stated they adhered to their previous decision that the findings of the SCM were correct in law and fact.  Although they were not required to do so, they assigned an attorney other than the initial reviewer to review his submission.  A thorough review was made of the applicant’s memorandum, dated 29 January 2010, and the case files.  The reviewer reached an independent conclusion that no relief was appropriate under Article 69(b), UCMJ.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s counsel contends the applicant’s rank should be restored to SSG because the applicant was the victim of toxic leadership and a poor command climate, he was denied the right to pursue an Article 69(b) appeal, and the loss of rank was too harsh a punishment.  


2.  Counsel’s contention that the unit’s command climate was poor is noted; however, the fact the applicant felt his unit’s leaders did not act appropriately does not negate his own actions.  He was a seasoned SSG, and as an NCO, he was expected to conduct himself in an exemplary manner and set the example for junior Soldiers.  However, while serving in a combat zone, he was convicted by an SCM on 16 January 2007 of punching a PFC in the face and advising a SPC to commit an assault.  Accordingly, he was sentenced to reduction of one rank to SGT and a forfeiture of pay.  

3.  The evidence of record confirms he was afforded the opportunity to appeal his punishment through the proper channels and he did so on 23 January 2007.  In addition, in November 2008, he submitted an Application for Relief under Article 69(b), UCMJ, appealing his sentence.  His Article 69(b) appeal was considered and in April 2009 it was denied and the SCM findings of guilty and the sentence were affirmed.  

4.  In January 2010, he submitted a request for reconsideration of the denial of his Article 69(b) appeal.  In July 2010, his initial submission and case file were reviewed by a second reviewer who also found that no relief was appropriate in his case under Article 69(b), UCMJ.

5.  His sentence included a reduction in rank to SGT and the forfeiture of pay.  His sentence was subsequently affirmed and found to be legally sufficient.  His sentence does not appear to be too harsh or unjust. 

6.  In view of the foregoing, there is an insufficient basis for granting the applicant the requested relief.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20110004021, dated 18 August 2011.



      _______ _ 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)                                         AR20120022726



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ABCMR Record of Proceedings (cont)                                         AR20120022726



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