IN THE CASE OF:  

		BOARD DATE:  21 May 2013

		DOCKET NUMBER:  AR20130007968 


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 counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of the applicant's records as follows:

* set aside the punishment imposed by Article 15, Uniform Code of Military Justice (UCMJ) on 22 February 2011
* removal of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) from the performance section of his Army Military Human Resource Record (AMHRR)
* retroactive promotion to sergeant first class (SFC)/E-7

2.  Counsel states:

	a.  In September 2010, the applicant, a 68W combat medic [healthcare specialist], was a student at the Special Operations Medical Training Command (JSOMTC), U.S. Army John F. Kennedy Joint Special Warfare Center and School (SWCS), Fort Bragg, NC.  Upon completion of the course the applicant initially received orders assigning him to Fort Leonard Wood, MO.  The applicant learned of an open position in Baumholder, Germany and requested assignment to that position.  On 2 November 2010, the Enlisted Distribution and Assignment System (EDAS) showed that the applicant was 
slotted for the position in Baumholder.  The applicant eagerly awaited his permanent change of station (PCS) orders so that he could start clearing Fort Bragg.

	b.  On 18 November 2010, the applicant had not received his orders, but Ms. KMJ of the Student Services Section, Personnel Services Battalion (PSB), SWCS, advised him to clear everything but transportation.  Ms. KMJ assured the applicant that the PSB would process his orders.  The applicant called
Ms. KMJ several times to inquire about the status of his orders.  She told him he did not need to call everyday because she would forward them to Mr. R, the S-1 officer for the Special Warfare Medical Group (Airborne) (SWMG (A)).

	c.  On 23 November 2010, SFC WBF, the SWMG (A) Operations NCO, asked the applicant when he would clear the unit.  The applicant told SFC WBF that he had his orders and he was clearing SWCS Personnel Administration Center (PAC).  He continued to out-process the necessary offices at Fort Bragg but did not complete his final out until 6 December 2010 because he had expected to receive the necessary amendments for his PCS orders.  On 16 December 2010, he asked Mr. R and Ms. KMJ about the amendments.  Ms. KMJ told him that he had a new report date of 10 January 2011 and that he should clear the unit and report to the PAC.  The applicant sought confirmation from Mr. R about his report date, but Mr. R stated
Ms. KMJ knew more information than he did.  The applicant cleared the unit and provided his contact information.  After he cleared the unit, he reported to Ms. KMJ daily throughout Christmas leave.  He asked if reporting to her was the proper procedure because he had already cleared his unit.  Ms. KMJ informed him that unless she reported him in an absent without leave (AWOL) status, he was following the correct procedure.  She told him that as long as he reported to her, his pay and status would not be affected.

	d.  On 19 January 2011, SFC WBF telephoned the applicant to inquire about his orders.  The applicant stated Ms. KMJ had his orders and that he needed one more signature before he could depart for Germany.  SFC WBF ordered him to report to him the next morning at 0630.  This conversation with SFC WBF constituted the first time anyone from the applicant's unit had contacted him since 16 December 2011. On 20 January 2011, SFC WBF formally counseled the applicant.  On the DA Form 4856 (Developmental Counseling Form), SFC WBF wrote: "… you never made an attempt to notify your unit to inform them you have not received your orders and to whom you should report until you received your orders.  By doing this you are considered AWOL from your unit, lying to a senior (NCO), failure to report your status, and conduct unbecoming of an NCO."  SFC WBF recommended the applicant receive an Article 15.  That same day, Major (MAJ) BWC, the S-1, initiated a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) against him.

	e.  On 15 February 2011, Colonel (COL) RHL, Commander, SWMG (A) initiated nonjudicial punishment  pursuant to Article 15, UCMJ.  COL RHL alleged the applicant was AWOL from his unit from 23 November 2010 until
19 January 2011, in violation of Article 86, UCMJ, and that he made a false official statement to SFC WBF on 23 November 2010, to wit:  "I have my orders and am clearing SWCS PAC."  The applicant consulted with Captain (CPT) S of the Fort Bragg Trial Defense Service.  CPT S spoke with the SWCS command judge advocate, who advised him that the command would consider dropping the Article 15 if the applicant could produce his PCS orders and reenlistment paperwork.

	f.  At the 22 January 2011 Article 15 hearing, COL RHL considered only the following documents:

		(1)  the developmental counseling form, dated 21 January 2011, wherein SFC WBF alleged the applicant was AWOL, lied to a senior NCO, failed to report his status, and that his behavior was unbecoming of an NCO;

		(2)  the developmental counseling form, dated 21 January 2011, wherein SFC WBF alleged the applicant was late to formation on 24 January 2011;

		(3)  the sworn statement from SFC WBF;

		(4)  the sworn statement from Ms. KMJ;

		(5)  the applicant's PCS orders, dated 7 January 2011, [counsel noted here that in the DA Form 4856, dated 21 January 2011, which was included in the Article 15 packet, SFC WBF alleges that the applicant arrived late to the 0630 formation on 24 January 2011; it is logically impossible that he was formally counseled on 21 January 2011 for an event that allegedly occurred three days later.  Given the numerous errors with the Article 15 documentation, it is unknown what relevance, if any, this written counseling had on COL RHL's findings; the applicant urges this Board to disregard this DA Form 4856 as irrelevant];

		(6)  the flagging action from MAJ C; and

		(7)  the applicant's Enlisted Record Brief (ERB), dated 19 January 2011.

	g.  At the conclusion of the hearing, the applicant asked COL RHL what punishment he intended to impose and where the Article 15 would be filed.  COL RHL stated he did not know and asked if the applicant planned to appeal. The applicant informed him that he planned to appeal, checked the corresponding box in block 7 of the DA Form 2627, and signed the DA Form 2627.  COL RHL also signed the DA Form 2627 and asked the applicant to wait downstairs while he made copies of the paperwork.  The applicant received his copy of the DA Form 2627 when he met with CPT S.

	h.  COL RHL did not write any punishment in block 4 but he affixed his initials next to the box indicating the Article 15 would be filed in the applicant's performance fiche.  The applicant cleared JSOMTC on 5 April 2011, as shown on the Unit Clearance Record that also required the Adjutant to indicate the applicant's duty status, including all AWOL prior to issuance of the clearance forms.  Block 10 required the Adjutant to indicate whether the applicant had been subject to any UCMJ actions or administrative reductions within 60 days of the issuance of the clearance forms.  The Unit Clearance Record is crystal clear:  at no time was he AWOL and he did not receive an Article 15 prior to the issuance of the clearance forms.

	i.  On 3 June 2011, the applicant reported to his new unit, 1st Battalion, 84th Field Artillery in Baumholder, Germany.  While inprocessing, he learned that he had been reduced from staff sergeant (SSG)/E-6 to sergeant (SGT)/
E-5 on 18 May 2011.  As of 16 May 2011, his Enlisted Record Brief (ERB) showed that his rank/grade was SSG.  There was no record of the Article 15 on the ERB.  He immediately sought to correct the matter.  CPT S, his TDS attorney at Fort Bragg, told him that his new command could address the situation.  He next contacted Master Sergeant (MSG) R of the U.S. Army Europe (USAREUR) Office of the Inspector General (OIG).  MSG R told him that he was guilty of being AWOL, but when MSG R contacted SWCS, there was no documentation to support the AWOL offense.  Personnel at SWCS then told MSG R that the applicant had been acquitted of AWOL but convicted of making a false official statement to SFC WBF.  The USAREUR OIG investigated the matter.  After speaking with personnel at SWCS, SFC SL, USAREUR OIG, determined there were "too many inconsistencies from the Fort Bragg community," that the applicant's Electronic Military Personnel Office (eMILPO) data indicated he was never AWOL, and that he reenlisted during the period he was allegedly AWOL.  SFC SL also learned that SFC WBF had been on leave from 24 November 2010 to 3 January 2011.  SFC WBF did not include this information in his 21 January 2011 sworn statement.  SFC SL submitted his findings to the battalion commander and recommended he set aside the Article 15 punishment of reduction in rank.

3.  Counsel states that COL RHL violated Army Regulation 27-10 (Military Justice), thereby rendering the punishment invalid and that the evidence was legally and factually insufficient to support any findings of guilt.  He argues that:

	a.  The punishment must be invalidated since COL RHL either imposed no punishment on the applicant or imposed punishment sometime after the hearing was over.  Either way, the applicant's subsequent reduction in rank by one grade was invalid.

	b.  The evidence was insufficient to support any finding of guilt since there is no documentary evidence to support the AWOL charge and the alleged false statement he made was in fact a true statement.

4.  Counsel concludes that the punishment imposed on the applicant pursuant to Article 15, UCMJ, should be set aside, the Article 15 should be removed from the performance fiche, and the applicant should be retroactively promoted to
SFC/E-7.  COL Lutz did not impose any punishment on 22 February 2011.  If COL RHL imposed the reduction in rank, he did so nearly 3 months after the Article 15 hearing.  The applicant does not know whether COL RHL imposed punishment for either or both offenses.  COL RHL's error materially prejudiced the applicant's substantial rights to notice and due process of law and this Board must invalidate the reduction in rank.  Finally, the evidence failed to prove beyond a reasonable doubt that the applicant committed either or both offenses.  Under all the circumstances of the case, the imposition of the Article 15 and the subsequent imposition of punishment resulted in a clear injustice because the unwaived legal error of insufficient evidence clearly and affirmatively injured the applicant's  substantial rights.

5.  Counsel provides

* Contested DA Form 2627 and allied documents
* DA Form 137-1 (Unit Clearance Record)
* ERB
* Email exchange

CONSIDERATION OF EVIDENCE: 

1.  The applicant previously served in the Regular Army (RA) (September 1987 to July 1990) and the Army National Guard (ARNG) (July 1990 to March 1993).

2.  He enlisted in the West Virginia ARNG (WVARNG) on 9 November 2001.  He held MOS 11B (Infantryman), 11C (Indirect Fire Infantryman), and 91W (Health Care Specialist).  He served through multiple extensions in a variety of assignments, including multiple periods of mobilizations/active duty.

3.  He enlisted in the RA in the rank/grade of SGT/E-5 on 22 October 2007.  His date of rank to SSG/E-6 is listed as 24 September 2006 on some documents, 
28 September 2006 on others, and 22 October 2007 on yet other documents.

4.  He was assigned to the 95th Civil Affairs Battalion, Fort Bragg in or about April 2009, and then the 82nd Sustainment Brigade, also at Fort Bragg, in or around November 2009.

5.  His service record contains multiple documents pertaining to the contested Article 15:

	a.  DA Form 4856 that shows on 24 January 2011 (actual counseling date), SFC WBF counseled the applicant for being late to formation.  The applicant indicated he agreed with the information and signed the counseling form.

	b.  DA Form 4656 that shows on 25 January 2011 (actual counseling date), SFC WBF counseled the applicant for failing to report, conduct unbecoming of an NCO, lying to a senior NCO, and AWOL.  The applicant indicated he agreed with the information and signed the form.

	c.  DA Form 2823 (Sworn Statement) from SFC WBF wherein he states on 23 November 2010, he questioned the applicant about clearing the unit and the applicant responded that he had his orders and he would be gone in a few days. He did not see the applicant again until 20 January 2011.  When he asked the
S-1 why the applicant had not dropped off the roster, the S-1 told him the applicant had not yet left and he had been contacting Ms KMJ at the PSB for quite some time regarding his orders.  He called the applicant and ordered him to report to duty.

	d.  DA Form 2823 from Ms. KMJ wherein she stated the applicant had been calling her repeatedly regarding his PCS orders to Germany and she had 
continuously told him once the orders were ready, she would send them through the S-1, Mr. R, and that the S-1 had instructed her that Soldiers should receive their orders from the S-1.

	e.  Orders 7-95, issued by Headquarters, U.S. Army Garrison, Fort Bragg, dated on 7 January 2011, reassigning the applicant to the 24th Support Battalion, Germany, with a reporting date of 10 March 2011.

	f.  DA Form 268, dated 20 January 2011, signed by MAJ BWC, initiating a flag against the applicant for adverse action, effective 20 January 2011.

	g.  ERB, dated 19 January 2011, that shows the applicant was promoted to SSG/E-6 on 22 October 2007.

6.  On 15 February 2011, COL RHL advised the applicant that he was considering whether he should be punished under Article 15, UCMJ, for:

* being AWOL from on or about 23 November 2010 to on or about
19 January 2011, in violation of Article 86, UCMJ
* making a false official statement with intent to deceive, on or about
23 November 2010, in violation of Article 107, UCMJ

7.  On 22 February 2011, after having been afforded the opportunity to consult with counsel, the applicant indicated he did not demand trial by a court-martial and elected a closed Article 15 hearing.  He further indicated that he did not request someone to speak in his behalf and that he would present matters in defense in person.

8.  On 22 February 2011, he accepted NJP under the provisions of Article 15, UCMJ, for violating Articles 86 and 107 of the UCMJ.  His punishment, as indicated on the DA Form 2727, consisted of a reduction to SGT/E-5.  The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's AMHRR.

9.  Additionally, on 22 February 2011, the applicant initialed the block indicating he wished to appeal and submit additional matters.  He placed his signature in item 7 (Initial appropriate block, date, and sign).

10.  On 14 March 2011, a military attorney reviewed the proceedings for legal sufficiency and found them to have been conducted in accordance with law and regulation and that the punishment imposed was not unjust or disproportionate to the offense committed.

11.  On 14 March 2011, after reviewing all matters presented in appeal, the next higher commander, Major General (MG) SB, the commanding general (CG), denied the applicant's appeal.  The CG placed his signature in item 9.  

12.  On 16 March 2011, the applicant acknowledged receipt of the decision to deny his appeal.  He placed his signature in item 10 (I have seen the action taken on my appeal). 
13.  On 22 April 2011, the DA Form 2627 was filed in the performance section of the applicant's AMHRR.

14.  The applicant was reassigned to Germany in or around April 2011.  He was/is assigned to the 1st Battalion, 84th Field Artillery. 

15.  Although not available to the Board for review, it appears the applicant sought help from the IG at his gaining command.  Counsel provides an undated email, presumably addressed to the applicant's gaining battalion commander in Germany, wherein SFC SL (USAREUR OIG NCO) states as he looked over the applicant's case and after his office spoke with the members at Fort Bragg involved in the proceedings, there were too many inconsistencies from the Fort Bragg community.  Additionally, his office pulled the applicant's data from eMILPO and it revealed he was present during the timeframe in question.  He adds that he submitted this information to the Staff Judge Advocate who advised him to provide the information to the battalion commander who could set aside the Article 15 if desired.

16.  Counsel provides a system-generated email, dated 1 December 2010, to the applicant informing him of the upcoming SFC/E-7 promotion selection board (convened on 3 February 2011).

17.  Army Regulation 27-10 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 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 provides, in pertinent part, 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.  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 3-28 describes setting aside and restorations.  This is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  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.

	c.  Paragraph 3-37c(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the AMHRR.  The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR 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 superior authority. 

	d.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states that applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates  there must sufficient evidence to support the removal of the DA Form 2627 from a Soldier's record by the ABCMR.

18.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.  The list of documents authorized for filing in the AMHRR, as maintained by the U.S. Army Human Resources command (HRC), states Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by the imposing commander in the appropriate block of the DA Form 2627.
19.  According to the Manual for Court-Martial, Article 86, UCMJ, is designed to cover every case not elsewhere provided for in which any member of the armed forces is, through the member's own fault, not at the place where the member is required to be at a prescribed time.  It is not necessary that the person be absent entirely from military jurisdiction and control.  The first part of this article, relating to the appointed place of duty, applies whether the place is appointed as a rendezvous for several or for one only.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offenses in question during an Article 15 hearing after considering all the evidence submitted by the applicant.  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.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for an Article 15 hearing.

2.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15, 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, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels.  The applicant appealed this Article 15 to the next higher commander; however, his appeal was denied.  The imposing commander directed filing the Article 15 in the performance section of his AMHRR.  This is where the subject Article 15 is currently filed.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the performance section of his AMHRR as directed by the imposing commander.  There is insufficient evidence of record and he provides insufficient evidence to show the DA Form 2627 is untrue or unjust.

4.  With respect to counsel’s arguments:

	a.  Contrary to counsel's arguments that the applicant was unaware of his punishment until he arrived in Germany months later, the evidence of record shows he was fully aware of the punishment imposed.  In fact, he appealed this punishment on 22 February 2011 and he acknowledged that he had seen the denial action of his appeal on 16 March 2011.
	b.  Contrary to counsel’s argument that COL RHL either imposed no punishment on the applicant or imposed punishment sometime after the hearing was over, the evidence is clear that COL RHL punished the applicant with a reduction and the applicant was fully aware of his reduction.  Additionally, a military attorney reviewed the proceedings for legal sufficiency on 14 March 2011 and indicated that the "the punishment imposed was not unjust or disproportionate to the offense committed."

	c.  Contrary to counsel's argument that the evidence was insufficient to support any finding of guilt since there is no documentary evidence to support the AWOL charge and that the alleged false statement he made was in fact a true statement, the applicant was counseled regarding his offenses by SFC WBF.  It is possible since the applicant, as counsel states, was a student and then PCS'd to Germany, a grade change in eMILPO was not done until his arrival at his gaining unit in Germany.  Regardless, Article 86, UCMJ, is designed to cover every case not elsewhere provided for in which any member of the armed forces is, through the member's own fault, not at the place where the member is required to be at the prescribed time.  It is not necessary that the person be absent entirely from military jurisdiction and control.

	d.  It is equally possible that the AWOL was not entered on his ERB because he was in a student status or because administrative officials did not make a timely entry.  Regardless, a later transaction in his ERB does not negate the fact that he violated the UCMJ and he was punished for it.  Thus, through an apparent administrative error, his ERB does not reflect his time lost (AWOL). 

5.  Neither the applicant nor his counsel 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 he now presents is not sufficient to change the determination of guilt made by the imposing commander at the time.  His dissatisfaction with the outcome of this Article 15 does not invalidate it.  He violated the UCMJ and he was punished for it.  There is neither an error nor an injustice and there is no reason to set aside the Article 15.

6.  The applicant was never selected for promotion to SFC/E-7.  Counsel's argument that the applicant should be retroactively promoted to SFC/E-7 suggests the applicant was in fact selected for promotion.  This is not the case.  The applicant was eligible for promotion consideration by the 2011 SFC/E-7 Promotion Selection Board.  However, since he was pending UCMJ action, he was flagged.  This placed him in a non-promotable status.  Even if he had been selected for promotion his selection would have been invalid since he was in a non-promotable status on the date the board convened.

7.  The Article 15 is properly filed in his AMHRR.  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 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 unless directed by an appropriate authority.

8.  His or counsel's belief that the presence of this Article 15 in the performance section of his AMHRR will impact his career is a natural consequence of his actions.

9.  The applicant has not demonstrated the NJP action was unjust or untrue, that this NJP should be removed, or that a removal would be in the best interest of the Army.

10.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's and counsel's requested 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 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)                                         AR20130001868



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ABCMR Record of Proceedings (cont)                                         AR20130007068



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