BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20130002712


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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR)) decision regarding his request for removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 7 October 2010, and all associated documents from his Army Military Human Resource Record (AMHRR), formerly known as his Official Military Personnel File (OMPF).

2.  The applicant states the Article 15 findings were not supported by evidence and did not meet the standard of beyond a reasonable doubt.  He further states the punishment was too harsh.

3.  The applicant provides a 4-page memorandum to the Board, nearly identical to a previously-submitted memorandum that accompanied his first request. However, this newly-submitted memorandum contains 3 new paragraphs, identified as paragraphs 2, 3, and 4.  The submitted memorandum contains      15 separate enclosures, identical to the enclosures submitted with his first request.  

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 AR20110015951, dated 7 February 2012.

2.  The applicant provides a 4-page memorandum to the Board, nearly identical to a previously-submitted memorandum that accompanied his first request but containing 3 new paragraphs.  These new paragraphs contain several new contentions, which constitute new arguments that were not previously considered by the Board; therefore, these new arguments will now be considered by the Board.

3.  The applicant enlisted in the Regular Army on 31 January 1995.  He completed his initial entry training and was awarded military occupational specialty 74D (Chemical, Biological, Radiological, and Nuclear (CBRN) Specialist).  He served in a variety of positions of increased responsibility, and on 1 May 2004, he was promoted to the rank/grade of staff sergeant (SSG)/E-6.

4.  His record shows he deployed to Iraq in support of Operation Iraqi Freedom on 3 occasions:

* from on or about 1 March 2003 to on or about 24 April 2003
* from on or about 13 December 2004 to on or about 25 June 2005
* from on or about 10 January 2006 to on or about 9 September 2006

5.  On or about 2 April 2010, he was reassigned to Company B, 110th Chemical Battalion, Joint Base Lewis-McChord, WA (formerly Fort Lewis, WA).

6.  On 30 July 2010, an informal equal opportunity (EO) complaint was filed against the applicant for making disparaging racial remarks to a noncommissioned officer (NCO) subject to his orders and for sexual discrimination/harassment.

7.  On 30 July 2010, an investigating officer (IO) was appointed, pursuant to Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) and Army Regulation 600-20 (Army Command Policy), to conduct an informal investigation into all of the facts and circumstances pertaining to the EO complaint.  

8.  On 18 August 2010, the IO submitted her Army Regulation 15-6 Investigative Report to the Commander, 110th Chemical Battalion, wherein she concluded that after investigating the allegations against the applicant, there was a preponderance of the evidence to support the claim that the applicant committed violations of the EO program outlined in Army Regulation 600-20.  The IO recommended punishment under the UCMJ as appropriate, and his removal from his current duty position within Chemical Response Team (CRT) 2, Bravo Company.

9.  On 7 October 2010, he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the UCMJ, for three specifications of disrespectful behavior toward his superior commissioned officer [in violation of Article 89 of the UCMJ] and three specifications of being cruel toward, oppressing, and maltreating three NCOs, persons subject to his orders [in violation of Article 93 of the UCMJ].

10.  The DA Form 2627 he received shows he elected not to demand trial by court-martial; he requested a closed hearing and a person to speak in his behalf; he elected to present, in person, matters in defense, extenuation, and/or mitigation.  After a closed hearing, he was found to be guilty of some of the specifications, and the DA Form 2627 was directed to be filed in the performance section of his OMPF (now the performance folder of his AMHRR).  He elected to appeal the findings of guilt, and to submit additional matters in his behalf.

11.  On 19 October 2010, after consideration of all matters presented in his appeal, his brigade commander denied his appeal.

12.  The applicant was notified he was being recommended for discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for the commission of a serious offense.  In his notification memorandum, he was informed of his right to request a hearing of his case before an administrative separation board.

13.  On 15 July 2011, an administrative separation board convened to consider his separation pursuant to Army Regulation 635-200, paragraph 14-12c, for the commission of a serious offense (3 allegations of disrespect to a superior commissioned officer and 2 allegations of cruelty and maltreatment toward a subordinate).  The board found that 2 of the 3 allegations of disrespect were supported by a preponderance of the evidence.  The board further found the allegations of cruelty and maltreatment were not supported by a preponderance of the evidence.  The board recommended the applicant be retained in the Army and given a rehabilitative transfer.  It is presumed the board's findings and recommendation were approved.

14.  He now provides a 4-page memorandum to the Board, which contains 3 new paragraphs in which he contends:

   a. Fundamental fairness argues in favor of the Board's consideration of his request.  An administrative separation board was held on or about 15 July 2011 to determine whether he should be separated from the Army.  During its deliberations, the board found there was insufficient proof, beyond a preponderance of the evidence, that he had committed most of the misconduct of which he was found guilty, and for which he received an Article 15.  This shows the original Article 15 findings and punishment were improper, because the Article 15, which required proof beyond a reasonable doubt, could not possibly have been proven if the allegations did not meet the lower burden of proof at the administrative separation board.  Accordingly, the only way to fix this injustice is to grant his request.

   b. His prior submission to the Board, sent on 28 July 2011, contained irrefutable evidence he does not believe was properly considered by the Board.  Specifically, in the ABCMR's Record of Proceedings (Docket Number AR20110015951), dated 7 February 2012, the Discussion and Conclusions section fails to address the fact that the allegations against him were largely unsubstantiated by an administrative separation board.  As a result, the ABCMR only considered the baseless allegations against him, which led to an EO complaint and a flawed Army Regulation 15-6 investigation, which in resulted in the Noncommissioned Officer (NCO) Evaluation Report (NCOER) and Article   15 – both of which originated from the underlying baseless allegations.  Nowhere in the Discussion and Conclusions section does the ABCMR consider that the allegations against him were unfounded after a full hearing at a separation board.

   c. The Board's previous findings stated that his uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.  His sworn statement is anything BUT uncorroborated.  In fact, the “17” attachments that were originally submitted, which are submitted again in this request for reconsideration, provide irrefutable evidence that he could not be found guilty beyond a reasonable doubt for most of the allegations charged in the Article 15.

15.  Army Regulation 27-10 (Military Justice) provides the applicable policies for administration of NJP.  The regulation states that 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 a record of court-martial conviction; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All
Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627.  The regulation also states that absent compelling evidence, a properly-completed, valid DA Form 2627 will not be removed from a Soldier’s record.

   a. Chapter 3 states that a commander will personally exercise discretion in the NJP process by evaluating the case to determine whether proceedings under Article 15 should be initiated, determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and determining the amount and nature of any punishment, if punishment is appropriate.

   b. Paragraph 3-18(l) states that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).  If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier.  The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed.

   c. 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 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 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. 

   d. Paragraph 3-28 states that normally the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

16.  According to the U.S. Military Manual for Courts-Martial (MCM), the maximum punishment for violations of Article 89 of the UCMJ is a bad conduct discharge, forfeiture of all pay and allowances, and confinement for 1 year.  The maximum punishment for violations of Article 93 of the UCMJ is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year. 

17.  Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

18.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the
AMHRR; formerly known as the OMPF.  It states that once a document is placed in the AMHRR, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  

19.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DA Form 2627, dated 7 October 2010, should be removed from his AMHRR because the findings were not supported by evidence, did not meet the standard of beyond a reasonable doubt, and the punishment was too harsh.   

2.  He contends the administrative separation board, convened to consider his separation from the Army, found there was insufficient proof, beyond a preponderance of the evidence, that he had committed most of the misconduct for which he was found guilty.  Therefore, and because of this fact, the original Article 15 findings and punishment were improper and unjust.

   a. The administrative separation board convened to determine the appropriateness of his retention on active duty, not the validity of the NJP he received under the provisions of Article 15, UCMJ.  

   b. It is the role of the imposing commander to determine the appropriateness of NJP.  In this case, after a thorough EO investigation, the imposing commander determined that NJP was warranted.  He had the option of preferring court-martial charges against the applicant, but instead chose NJP as the lesser means of punishing the applicant for his proven misconduct.

   c. Despite the administrative separations board's findings, the evidence of record shows beyond a reasonable doubt, that he was guilty of misconduct on numerous occasions, and his commander was justified in using NJP as a means to correct his inappropriate behavior.

   d. His contention that his punishment was too harsh is unsupported.  The imposing commander could have preferred court-martial charges for the applicant's violations.  Those charges would have carried a much more severe punishment.  

3.  He contends his previous submission to the ABCMR contained irrefutable evidence that was not properly considered by the Board.  Specifically, the Board did not address the fact that the allegations against him were unsubstantiated by the administrative separation board and, therefore, the Board only considered the baseless allegations contained in the EO complaint and investigated by the IO during the Army Regulation 15-6 investigation.

4.  Whether or not the administrative separation board substantiated the allegations against him is not dispositive.  The evidence of record shows the imposing commander based the applicant's NJP on the evidence developed in the Army Regulation 15-6 investigation.  According to Army Regulation 27-10, the commander imposing NJP must be convinced beyond a reasonable doubt that the Soldier committed the offense(s).  It appears, in this case, the imposing commander was sufficiently convinced of the applicant's guilt prior to imposing NJP.

5.  Lastly, he contends his sworn statements were corroborated and therefore should be used as a basis to support the setting aside of his punishment.  He further contends the submitted enclosures provide irrefutable evidence he could not be found guilty of most of the allegations against him.  While his request contains numerous third-party letters of support, they do not provide a sufficient basis to disturb the findings of the Article 15 process.   

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

7.  The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  There is generally a reluctance to remove adverse information from an AMHRR when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does remove unfavorable information, it only does so if it is untrue or unjust.  However, in this case, there is no evidence his NJP was unjust or untrue or inappropriately filed in his AMHRR.

8.  In view of the foregoing, there is no basis for granting the applicant's 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR as set forth in Docket Number AR20110015951, dated 7 February 2012.




      __________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)                                         AR20100015589



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ABCMR Record of Proceedings (cont)                                         AR20130002712



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