IN THE CASE OF:	  

		BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20130010591 


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 removal of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)), dated 20 April 2012, and allied documents that are filed in the restricted section of his Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), and correction of the DA Form 3975 (Military Police (MP) Report - Centralized Operation Police System (COPS) Reference Blotter Entry) to show he is innocent of the charges.

2.  The applicant states he received a field grade Article 15 for allegedly assaulting a Soldier who was in his custody.  However, the Article 15 was given without all information, evidence was not produced in a proper manner, and sworn statements were not included in the case.

   a.  The applicant was performing duties as an MP and he was accompanied by Sergeant Major (SGM) T--- F----.  After investigating an incident at a club, a Soldier (the subject) was taken into custody.  While in the applicant's custody in the backseat of his patrol car, the subject became very violent and maneuvered out of his seatbelt.  The applicant stopped the patrol car, secured the seatbelt, and continued on to the Provost Marshal's Office (PMO).

   b.  In the PMO parking lot, the subject continued to be combative and the applicant had to put him on the ground.  In the interview room, the subject was hitting his head on the wall and had to be restrained by three MPs.  The events in the interview room were witnessed on a monitor by Lieutenant Colonel (LTC) N--- K--- and SGM F---.
   c.  The subject eventually fell asleep.  About an hour later, the subject again became violent, moved toward the applicant, and spit in his face and mouth.
The subject approached a second time and the applicant performed a self-defense technique (gable grab) to take the subject to the ground.  The subject continued to try to spit on him and the applicant turned the subject's head to the side with his forearm.  He adds, "At no point in time did I ever strike the individual or intend to cause [him] harm."

   d.  Later, the subject's first sergeant arrived to sign for the Soldier on a 
DA Form 2708 (Receipt for Pre-Trial/Post-Trial Prisoner or Detained) and indicated that the Soldier was in good health and condition.  However, this form is not available to the applicant to present as evidence.

   e.  He presented the evidence he had at the Article 15 hearing.  However, the Article 15 is unjust because of inconsistencies in taking evidence from individuals and entering it on the DA Form 3975.  Also, Sergeant (SGT) S--- E----, the MP Investigator (MPI) who took multiple sworn statements is absent from the case.  The video from the club where the disturbance occurred that evening was lost.  The video of the interview room, which was originally a few hours long, was condensed to eight minutes for the Article 15 hearing.  In addition, LTC M--- D. R--- took the full-length video from the applicant at the Article 15 hearing, but he did not view it.  Further, the applicant's request for its return was denied.

   f.  He came across exculpatory evidence four weeks later after speaking to the MPI who took the statement of either LTC K--- or SGM F---.  However, the MPI has since left the Army and the applicant was not able to contact him to get a statement for his appeal.  As a result, he elected not to appeal the Article 15.

   g.  He filed a Complaint of Wrongs Under Article 138, UCMJ, but was told that his grounds for the Article 138 were not credible.  His motion to set aside the Article 15 was also denied.

   h.  He adds that he has done well in spite of the Article 15.  He regained his rank of SGT (E-5).  He has also continued to pursue training, positions of increased responsibility, and improvements in operations that he is involved in.

3.  In support of his request the applicant provides the 13 documents listed on his self-authored memorandum, dated 26 April 2013.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 11 April 2007.

2.  He is currently serving on active duty in the RA as a SGT (E-5).

3.  A review of the applicant's AMHRR maintained in the interactive Personnel Electronic Records Management System (iPERMS) revealed a DA Form 2627, dated 20 April 2012, imposed as punishment for his misconduct at or near Schweinfurt, Germany, on 26 February 2012, for:

* unlawfully grabbing and throwing an individual to the ground, in violation of Article 128, UCMJ
* being derelict in the performance of his duties by willfully failing to abstain from using excessive force, in violation of Article 92, UCMJ

4.  The DA Form 2627 also shows the applicant was advised of his rights and afforded the opportunity to consult with counsel.

	a.  The applicant did not demand a trial by court-martial.  He requested a closed hearing and a person to speak in his behalf.  He indicated that matters in defense, mitigation, and/or extenuation to the DA Form 2627 were not presented, but were attached and would also be presented in person.

	b.  On 20 April 2012, in a closed hearing, having considered all matters presented, LTC M--- D. R----, Commander, U.S. Army Garrison (USAG) - Schweinfurt, found the applicant was guilty of the misconduct.

	c.  Item 6 (The following punishment is imposed) shows "reduction to the grade of specialist (E-4); forfeiture of $1,000 pay per month for two months, suspended, to be automatically remitted if not vacated before 17 October 2012; extra duty for 45 days; and restriction for 45 days."

   d.  Item 4b shows the imposing authority directed the DA Form 2627 be filed in the restricted section of the applicant's OMPF (AMHRR).

	e.  Item 5 shows that the applicant placed his initials in the block "I do not appeal," he entered the date (20 April 2012), and he placed his signature on the document.

   f.  Item 10 (Allied Documents and/or Comments) shows:

* DA Forms 2823 (4 copies)
* MP Report
* FLAG (DA Form 268)
* Enlisted Record Brief (ERB)

5.  In July 2012, the applicant submitted a Complaint of Wrongs Under Article 138, UCMJ, and it was forwarded to the General Court-Martial Authority.

6.  In September 2012, he received a reply returning his complaint because it was inappropriate under Article 138, UCMJ.  He was advised that, although he had declined to submit a timely appeal of his Article 15, he still had the option to request that the Article 15, UCMJ action be set aside, in whole or in part.

7.  On 4 October 2012, the applicant submitted a request for "Set Aside of Article 15 Punishment" to the Commander, 7th Army Joint Multinational Training Command (7A JMTC).

   a.  His request was based on the fact that evidence indicating his innocence was not included in the evidence packet that was first given to the officer who imposed the Article 15.

   b.  He indicated that his request was submitted outside the four-month submission period because he was awaiting the results of a Complaint of Wrong Under Article 138 inquiry based on being denied fair consideration of his matters in an Article 15, UCMJ hearing.

8.  On 22 October 2012, LTC M--- D. R----, Commander, USAG – Schweinfurt, provided information to the Commander, 7A JMTC, pertaining to the applicant's request for Set Aside of Article 15 Punishment.

   a.  He provided a summary of the Article 15 proceedings and noted that his decision was based upon various testimonies, statements, and video evidence that was presented.  He concluded, "It was clearly evident that the [applicant] assaulted a Soldier who was in full restraints (hand and leg irons) while in his custody at the MP station."

   b.  He stated the applicant's Article 15 proceedings lasted over three hours, roughly two hours longer than is typical of other cases he reviews, which demonstrates the seriousness he took in reviewing and hearing all evidence and matters presented.

   c.  Regarding the applicant's assertion that the statements of LTC K--- and SGM F--- were not considered, he noted that both individuals were present for the Article 15 proceedings and gave personal testimonies to all they had witnessed on the evening in question, which provided context to what occurred prior to the applicant's assault on the Soldier.  However, they did not witness the assault in the interrogation room, which was recorded on video tape. Nonetheless, he considered their experience with the applicant as matters of extenuation and mitigation.

   d.  He noted that the club video that the applicant claimed would exonerate him was never offered as evidence.  In addition, it purportedly would have been of footage of the Soldier (subject) in the club prior to the incident and it would have been irrelevant to the determination of the guilt phase because the circumstances and environment had changed when the applicant assaulted the Soldier at the MP station.

   e.  He added, "I have no doubt [the applicant] acted as a professional MP officer throughout the evening up to the point that he assaulted a confined Soldier.  By using excessive force to lift the drunk, restrained, confined Soldier off the floor and throwing him down, [the applicant] completely violated everything our Army expects of a Noncommissioned Officer and MP.  The Soldier - who was unable to protect himself from the fall because of his restraints - struck the floor head-first and incurred significant trauma to his face and eye.  [The applicant] had other options and chose not to avail himself of them."  

   f.  LTC R---- concluded that due process occurred and justice was served in the applicant's case.

9.  On 16 November 2012, the Commander, 7A JMTC, concluded that he did not find that a clear injustice was committed in the applicant's case.  Accordingly, he denied the applicant's request for Set Aside of Article 15 Punishment.  He added that the request constituted the applicant's one appeal of his Article 15.  He also directed that a copy of the correspondence be filed in the applicant's AHMRR.

10.  The applicant's DA Form 2627 also shows in:

   a.  Item 7 (I have considered the appeal and it is my opinion that), the entry "The proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offenses committed" and that the Chief, Military Justice, placed his signature on the document on 16 November 2012.

   b.  Item 8 (After consideration of all matters presented in the appeal, the appeal is), the Commander, 7A JMTC, indicated with his initials and signature that he denied the appeal on 16 November 2012.

   c.  Item 9 (I have seen the action taken on my appeal), the applicant placed his signature on the document on 20 November 2012.

11.  The DA Form 2627, allied documents, and documents relating to the appeal authority's action are filed in the restricted section of the applicant's AMHRR.

12.  In support of his request the applicant provides the following documents:

   a.  A sworn statement made by the applicant on 28 February 2012 that provides his account of the events that occurred beginning at approximately 
0300 hours, 26 February 2012, including the actions of the applicant and those of the subject Soldier.  It shows, in pertinent part:

* Question:  "When you brought [subject] to the floor did you use a lot of force?"
* Answer:  "No, I didn't even know [subject] hit his head until after [redacted] told me after he escorted him to his sponsor."
* Question:  "You said you didn't lift him off the ground at all, right?"
* Answer:  "No."

    b.  DA Form 3975, page 1, dated 28 February 2012, shows the applicant was charged with Assault consummated by a Battery (Article 128, UCMJ).
   
    	(1)  Section VII (Narrative), page 6, shows that on 29 February 2012, the MPI contacted an officer at the Schweinfurt Staff Judge Advocate office, who opined that there is sufficient evidence to charge the applicant with:

* Assault - consummated by a Battery (Article 128, UCMJ)
* False Official Statement (Article 107, UCMJ)
* Failure to Obey an Order/Regulation (Article 92, UCMJ)

    	(2)  Pages 7 and 8 of the DA Form 3975 show the two additional charges.

   c.  Two sworn statements made by SGM T--- F---- and LTC N--- K----, both dated 30 March 2012, that provide their account of the events that occurred during the period from approximately 0300 to 0500 hours, 26 February 2012, involving the applicant and the subject Soldier.  (These sworn statements are allied documents to the NJP.)

   d.  Email messages, dated 16 and 17 April 2012, that show applicant's counsel requested a copy of the club video from the MPI.  The MPI advised that there was no video from the club with the case, only a video of the subject in the PMO interrogation room.

   e.  Four character letters, three dated 1 June and one dated 5 June 2012, from Soldiers who attest to the applicant's professionalism in handling his MP duties previous to the incident.  They offer that the applicant used the appropriate level of force during the incident.  None of the Soldiers state that they were present or witnessed the incident in the PMO interrogation room on 26 February 2012.  (The four sworn statements are allied documents to the NJP.)

   f.  Two character letters, dated 9 and 22 April 2013, from Soldiers who were working with the applicant on 26 February 2012 at the time of the incident.  They attest to the subject's dangerous and aggressive behavior and describe how the applicant exercised the appropriate level of force to subdue the subject.  One of the Soldiers (Specialist (SPC) C--- A. H---) indicates that he witnessed the incident in the PMO interrogation room on a monitor.  He states that when the subject spit in the applicant's face, the applicant took the subject to the ground.  When he arrived in the interrogation room, the applicant was holding the subject on the ground and directed SPC H--- to switch places with him.
 
13.  Army Regulation 190-45 (MP - Law Enforcement Reporting) establishes policies and procedures for offense and serious incident reporting within the Army.

   a.  Chapter 4 (Offense Reporting), paragraph 4-2 (MP Report), provides that the DA Form 3975 is a multipurpose form used to, in part:

* document entries made into the COPS Military Police Reporting System and other automated systems
* advise commanders and supervisors of offenses and incidents involving personnel or property associated with their command or functional responsibility

   b.  It also shows that, if an offense is determined to be unfounded, after the case has been forwarded to U.S. Army Crime Records Center (USACRC), a supplemental DA Form 3975, using the MP Report (MPR) number and USACRC control number will be submitted stating the facts of the subsequent  investigation and that the case is unfounded.

14.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the AMHRR.  Depending on the purpose, documents will be filed in the AMHRR in one of six sections:  performance, service, restricted, medical, other, or State/Territory.

	a.  Table B-1 (Authorized Documents) provides guidance for filing the
DA Form 2627.  The DA Form 2627 will be filed in either the performance or restricted section of the AMHRR, as directed by item 4 of the DA Form 2627.
	b.  The restricted section of the AMHRR is used for historical data that may normally be improper for viewing by selection boards or career managers.  The release of information in this section is controlled.  It may not be released without written approval from the Commander, U.S. Army Human Resources Command (USA HRC), or the Headquarters, Department of the Army, selection board proponent.  Documents in the restricted section of the AMHRR are those that must be permanently kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; show corrections to other parts of the AMHRR; record investigation reports and appellate actions; and protect the interests of the Soldier and the Army.

15.  Army Regulation 27-10 (Military Justice), Chapter 3 (Nonjudicial Punishment (NJP)), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.

   a.   Paragraph 3-43, subparagraph e, states that Army Regulation 15-185 contains policy and procedures for applying to the Army Board for Correction of Military Records (ABCMR) and for the correction of military records by the Secretary of the Army.  Requests should be sent to the ABCMR to correct an error or remove an injustice only after other available means of administrative appeal have been exhausted.  Absent evidence to the contrary, a properly completed, facially valid DA Form 2627 will not be removed from a Soldier's record by the ABCMR.

   b.  Paragraph 3-28 (Setting aside and restoration) provides that in cases where administrative error results in incorrect entries on the DA Form 2627, the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.

16.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states 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.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 2627, dated 20 April 2012, and the allied documents that are filed in his AMHRR should be removed because the DA Form 2627 was improperly administered without considering all the evidence and the DA Form 3975 should be corrected to show he is innocent of the charges.

2.  Records show that NJP was imposed against the applicant for violating Article 128, UCMJ, for unlawfully grabbing and throwing an individual to the ground and violating Article 92, UCMJ, for being derelict in the performance of his duties by willfully failing to abstain from using excessive force.

   a.  Based on the available evidence of record, it appears the commander elected not to charge the applicant with making a false official statement (Article 107, UCMJ).

   b.  The evidence of record shows the applicant consulted with counsel prior to his hearing with the commander and the applicant elected not to exercise his right to demand trial by court-martial.

    	(1)  In a closed hearing, the commander considered the evidence, including all matters presented by the applicant and the testimony of a LTC and SGM who testified in his behalf.
   
    	(2)  The commander found the applicant guilty of the misconduct and directed the DA Form 2627 be filed in the restricted section of the applicant's AMHRR.

    	(3)  The applicant elected not to appeal the nonjudicial punishment.

3.  Despite the fact that the applicant failed to file a timely appeal, the appeal authority advised him that he had the option to request that the Article 15, UCMJ action be set aside, in whole or in part.  On 4 October 2012, the applicant submitted a request for "Set Aside of Article 15 Punishment."

   a.  The commander who imposed the NJP provided information to the appeal authority.  In that document, the commander noted that he had viewed the MP station video documenting the assault.  He stated, "By using excessive force to lift the drunk, restrained, confined Soldier off the floor (emphasis added) and throwing him down, [the applicant] completely violated everything our Army expects of a Noncommissioned Officer and MP."

    	(1)  This statement contradicts the applicant's sworn statement to the MPI that he didn't use excessive force or lift the Soldier off the ground.

    	(2)  Thus, in view of all of the foregoing, the evidence of record does not support the applicant's contention that the charge(s) on the DA Form 3975 are unfounded or that he is innocent of the charge(s).

   b.  Therefore, there is an insufficient evidentiary basis to correct the
DA Form 3975.

4.  The appeal authority concluded that he did not find that a clear injustice was committed in the applicant's case.  Accordingly, he denied the applicant's request for Set Aside of Article 15 Punishment.

5.  The evidence of record shows the applicant's case was thoroughly reviewed and the NJP was properly administered.  In addition, the DA Form 2627 and allied documents are properly filed in the restricted section of his AMHRR.

6.  By regulation, in order to remove a DA Form 2627 from the AMHRR, there must be compelling evidence to support its removal.  

7.  After a careful review of the evidence of record, it is concluded that the applicant failed to submit evidence of a compelling nature to show that the
DA Form 2627 that is filed in the restricted section of his AMHRR is untrue, in error, or unjust.  Therefore, the DA Form 2627, dated 20 April 2012, along with the allied documents that are filed in the restricted section of his AMHRR, are deemed to be properly filed and should not be removed from the applicant's AMHRR.

8.  As a result of the aforementioned conclusions, there is no basis to grant 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 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)                                         AR20130010591



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ABCMR Record of Proceedings (cont)                                         AR20130010591



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