IN THE CASE OF:	   

		BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130005159 


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 requests and statements to counsel and he provides no additional evidence.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant be:

* advanced on the retired list in the grade of sergeant first class (SFC), pay grade E-7, effective 30 June 1992
* provided copies of all advisory opinions (oral or written), staff briefs or memoranda, and military or civilian investigative reports prepared for use and consideration by the Board, so the applicant may submit a rebuttal

2.  Counsel states:

   a.  The applicant was improperly reduced under Article 15, Uniform Code of Military Justice (UCMJ).  The applicant initially enlisted in the U.S. Army on 9 June 1972 for 3 years.  He served in Korea; Germany; Fort Campbell, KY; Fort Benning, GA; and Fort Drum, NY.  Over his 20 years he earned the Armed Forces Expeditionary Medal for Korea, Army Service Ribbon, Overseas Service Ribbon (3rd Award), National Defense Service Medal, Army Achievement Medal, Army Commendation Medal, Army Good Conduct Medal (4th Award), Noncommissioned Officer Professional (NCO) Development Ribbon (2nd Award), and Meritorious Service Medal.
   b.  In the mid-1980s while stationed at Fort Campbell, the applicant had collateral duties as the "ammunition sergeant."  Essentially, he was in charge of maintaining accountability of ammunition and explosive material.  On one particular field exercise where the applicant had procured some explosives and detonation cord, some of the explosive material went missing.  This was partly because the applicant was not provided adequate manpower to assist him with watching over the explosives.  The applicant and his senior enlisted supervisors determined that some of the Soldiers had taken the explosives and detonation card when no one was looking.  The stolen items were later recovered.  

   c.  The command felt that the missing explosives were the applicant’s responsibility because his job was to maintain accountability of explosive material.  The command imposed nonjudicial punishment (NJP) on the applicant under Article 15 of the UCMJ.  However, the applicant never accepted the punishment.  He was never served any paperwork regarding the Article 15 nor was he informed of his rights regarding the Article 15.  No DA Form 2627 (Record of Proceedings under Article 15, UCMJ) appears anywhere in his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File.  

   d.  Additionally, the applicant was never brought before his commanding officer to be punished.  Although somewhat unclear in his records, it appears the applicant did receive an Article 15 on 10 February 1986 at Fort Campbell, KY.  The only form in his AMHRR that references an Article 15 is a DA Form 3072 (Request for Waiver of Disqualification for Enlistment/Reenlistment).  The offense listed is "conduct unbecoming an NCO," with no article of the UCMJ specified.  His punishment included reduction to pay grade E-5 and a forfeiture of one-half of one month’s pay for two months.  At that time, the applicant was promotable to SFC.

   e.  After apparently being reduced on 10 February 1986, the applicant then attempted to reenlist in the Army on 30 March 1987.  He requested a waiver for reenlistment due to grade limitations, which he received on 10 April 1987.  After reenlisting in 1987 he continued to serve on active duty for another five years.  He was again promoted to staff sergeant (SSG) on 1 January 1991.  After serving 20 years, he retired on 30 June 1992.

   f.  First, the offense listed does not exist in the UCMJ.  "Conduct unbecoming an NCO" is not a crime in the military, nor has it ever been a crime.  It is impossible to verify that the applicant’s command at the time suspected him of committing an actual crime under the UCMJ, as opposed to just making a mistake that was not criminal.
   g.  Second, no DA Form 2627 appears in the applicant’s AMHRR.  That form was published by the Army in its current form as early as August 1984.  That form would have been available for use at the time the applicant was purportedly punished under Article 15.  Without a DA Form 2627, it is impossible to know whether the applicant was properly punished under Article 15.  There is no record of the crime charged, whether he was informed of his rights, and whether he voluntarily accepted Article 15 punishment.

   h.  The fact that the applicant’s command did not follow Army Regulation
27-10 (Military Justice) procedures regarding administration of Article 15 punishment strongly supports a finding that administrative regularity did not exist in the applicant’s case.  Therefore, the content of the applicant’s signed statement proves the error and the injustice by a preponderance of the evidence. In his statement, the applicant recounts the events which took place at Fort Campbell.  He was never offered Article 15 punishment nor was he informed of his rights regarding Article 15 punishment.  Further, he never accepted Article 15 punishment and he was never actually brought before the commanding officer and punished.

   i.  The Article 15 punishment imposed on the applicant was improperly imposed and therefore he was reduced in rank in error.  He served approximately six additional years on active duty after he was allegedly reduced in rank per Article 15.  During that time, he was promoted to SSG for the second time.  Had he not been reduced in error, he would have instead been promoted to SFC and retired in that grade.

3.  Counsel provides copies of the applicant’s

* DA Form 2-1 (Personnel Qualification Record – Part II)
* Article 15 appeal statement
* DA Form 3340 (Request for Regular Army Reenlistment or Extension)
* Request for Waiver memorandum
* Two copies of the 1992 DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army, in pay grade E-1, on 9 June 1972, for 3 years.  He completed training and was awarded military occupational specialty 11B (infantryman).  He served in Korea from 26 November 1972 through 8 July 1975 and from 23 September 1977 through 18 September 1978.

2.  He was promoted to SSG on 17 July 1979.  He also served in:

* Germany - from 29 December 1979 through 17 December 1981
* Korea – from 11 May 1983 through 12 August 1984 and from 
9 September 1987 through 7 September 1988

3.  The applicant’s record contains a DA Form 2627 which shows:

	a.  On 6 February 1986, the applicant's battalion commander notified the applicant that he was considering whether he should be punished under Article 15, UCMJ, for misconduct (willfully failing to report the loss of demolitions, making two false official statements, and willfully altering a public record). 

	b.  The applicant indicated that after having been afforded the opportunity to consult with counsel, he did not demand trial by a court-martial and opted for a closed hearing. 

	c.  On 11 February 1986, he accepted NJP under Article 15, UCMJ, for dereliction in the performance of duty by willfully failing to report the loss of some demolitions, as it was his duty to do so; with intent to deceive by making two false statements about the inventory; and willfully and unlawfully altering, with intent to conceal, a public record.  His punishment included a reduction to pay grade E-5, a forfeiture of $500.00 pay per month for two months, and 30 days of extra duty.  He elected to appeal the punishment.  

4.  Counsel provided a copy of an undated statement it appears the applicant submitted in his appeal.  In the statement, the applicant stated:

   a.  While serving as an ammunition sergeant he was involved in a situation beyond his control.  His unit has 25-30 known card-carrying Klu Klux Klan (KKK) affiliates.  Until that present time he always feared for his family’s safety.  He was instructed to pick up some TNT (trinitrotoluene) and C4 for a field training exercise.  He informed his supervisors that this was a bad idea due to the fact that they had previous incidents which included smuggling M-16 weapons off-post.

   b.  He had 3-4 trucks and no escort beside himself and the driver of the vehicle.  Upon his return with the said items he was instructed to move the ammunition further up the hill away from the main body of the unit.  Upon his return from surveying the area, he checked his items and discovered that several boxes had been opened.  He was informed that a Specialist (SPC) Sxxxxxxxxx told them that he had authorized him to get the items out, which was not true.  He was the only one to receive the items by authorization and to distribute them with assistance from Private First Class Mxxxxx.  When he found SPC Sxxxxxxxxx and asked him why he opened the boxes, he did not have an answer.

   c.  After performing an inventory of the boxes, he immediately tried to locate his first sergeant and supply sergeant to inform them of the missing items.  Upon examination of SPC Sxxxxxxxx’s ruck sack he found the detonation cord, but not the TNT or C4.  He informed the first sergeant upon his return and they managed to get hold of SPC Sxxxxxxxx and part of the TNT and C4.  A supply sergeant from his unit was also involved.  He was later informed that SPC Sxxxxxxxxxx and the supply sergeant were all affiliate card-carrying KKKs.
   
   d.  He did not know what happened to the individuals as there was no court-marital to his knowledge; however, he received an Article 15.  He was never served with any written notification that he would receive Article 15 punishment.  He was verbally notified by his SFC that he would be receiving an Article 15; however, he was not given a choice to accept or decline the Article 15. Also, he never stood before the commanding officer to be punished.  He was notified by his 1SG through word of mouth of his reduction in rank.

5.  He was reduced to pay grade E-5 on 11 February 1986.

6.  On 3 March 1986, his appeal was denied and the imposing commander ordered the DA Form 2627 filed on the performance fiche of the applicant’s Official Military Personnel File (OMPF).  This form is filed on the performance file of his records.

7.  He reenlisted in the RA on 30 June 1987 for six years.  He was again promoted to SSG, pay grade E-6, on 1 January 1991.

8.  He was honorably retired in pay grade E-6, on 30 June 1992.  He was credited with completing a total of over 20 years of net active service with no time lost.  

9.  Army Regulation 27-10 (Military Justice), in effect at the time, prescribed the policies and procedures pertaining to the administration of military justice.  Chapter 3 specified that NJP was imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  NJP could be set aside, removed, or changed upon a determination that, under all the circumstances of the case, a clear injustice has resulted.  DA Form 2627 would be used to record all action taken under Article 15.  The original would be permanently filed in the OMPF.  


DISCUSSION AND CONCLUSIONS:

1.  Contrary to counsel’s contention, the evidence of record shows that on 11 February 1986 the applicant accepted punishment under Article 15, via a DA Form 2627, for dereliction in the performance of duty by willfully failing to report the loss of some demolition, with intent to deceive by making two false statements, and willfully and unlawfully altering a public record.  

2.  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.  The applicant further appealed this Article 15 to the next higher commander and his appeal was denied.  

3.  He was again promoted to SSG in January 1991 and retired in that grade on 30 June 1992.  

4.  There is no evidence of record and neither the applicant nor counsel have provided sufficient evidence to show the DA Form 2627 contained in his record is untrue or unjust or that the applicant was improperly imposed punishment under Article 15.

5.  Therefore, there is insufficient evidence to show he served satisfactorily and had sufficient time in the rank of SFC for advancement on the retired list in that grade.  

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)                                         AR20130005159





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ABCMR Record of Proceedings (cont)                                         AR20130005159



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