BOARD DATE:	1 April 2014  

		DOCKET NUMBER:  AR20130012219 


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 to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) be set aside and all documents concerning the non-judicial punishment (NJP) be expunged from the applicant's Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  Counsel further requests that if relief cannot be granted based on this petition alone, the applicant requests a personal appearance before the Board. 

3.  Counsel states the applicant was found guilty of two specifications of violating Article 91, UCMJ, for willfully disobeying two separate orders from a noncommissioned officer (NCO).

	a.  He states the applicant contends it was not possible to comply with an order to go to the range because he was conducting training sessions in the desert and was many miles from any firing range, thus making it impossible for him to go to the range.  Therefore, the applicant did not "willfully" disobey the order.  

	b.  He states that in the second instance of disobeying a lawful order to "help as a translator/interpreter" the first sergeant came into the barracks where the applicant was resting and asked, "Where is the rag-head"?  The first sergeant then turned to the applicant and stated, "Get up rag-head.  Where the [expletive] were you?"  When the applicant explained to the first sergeant that he had been out with the platoons all day conducting translator/interpreter duties, he was orally reprimanded.  Instead of the first sergeant listening to the applicant and realizing that he himself was in the wrong, he chose to attempt to make an example of the applicant.  

	c.  He states with regard to the five instances of failing to go at the time prescribed to his appointed place of duty, the applicant received punishment that was disproportionate, which included reduction in grade.  Counsel further states that as outlined in the Manual for Courts-Martial, "Reduction in grade is one of the most severe forms of non-judicial punishment and it should be used with discretion." 

	d.  He also states that by the applicant's statement and the statements of his counterparts, which are included, these Soldiers were the victims of discrimination, harassment, and an extremely hostile working environment.  He cites some U.S. Army policy on equal opportunity and concludes that unquestionably the applicant was not afforded fair treatment without regard to race, color, gender, religion, national origin, or provided an environment free of unlawful discrimination and offensive behavior as is ordered by the U.S. Army.   

4.  Counsel provides:

* applicant's brief
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 November 2006
* DD Form 214 for the period ending 8 June 2009
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ)
* three affidavits

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With 6 months and 26 days of prior U.S. Army Reserve service, the applicant enlisted in the Regular Army on 1 December 2006 in the rank of specialist (SPC)/pay grade E-4 for 3 years.  He was awarded military occupational specialty 09L (Translator Aide).

3.  His AMHRR contains the case file for his approved administrative separation including the DA Form 2627 in question and allied documents related to his alleged offenses for which he was given NJP.

   a.  DA Forms 4856 (Developmental Counseling Form), dated 12 February,  4 March, and 6 March 2009, shows he was given event-oriented counseling by a platoon sergeant for violating Article 86, UCMJ, by failing to be at his place of duty at the prescribed time.  A summary of the latter counseling shows he had missed formation five times since December 2008.

   b.  A DA Form 4856, dated 26 March 2009, shows he was given event-oriented counseling by a platoon sergeant for violating Article 86, UCMJ, by failing to be at his place of duty at the prescribed time; violating Article 92, UCMJ, by failing to obey an order or regulation; and violating Article 107, UCMJ, by making false official statements.  The counseling further shows that he had displayed unprofessionalism and a lack of discipline.
   
4.  He accepted NJP on 9 April 2009 for disobeying two lawful orders, going from his appointed place of duty without authority, and on four occasions for failing to go at the prescribed time to his appointed place of duty.  His punishment consisted of a reduction in grade from SPC to private/E-1, forfeiture of $700 pay per month for 2 months, extra duty for 45 days, and restriction to the limits of Fort Irwin, CA, less any establishments that sold alcohol, for 45 days.  The filing instructions on the DA Form 2627 were lined through.  He did not appeal the punishment.
 
5.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), dated 22 April 2009, shows his company commander initiated a flag against him for field initiated elimination.

6.  On 8 June 2009, he was discharged from active duty due to misconduct (serious offense).  The DD Form 214 he was issued shows he completed 2 years, 6 months, and 8 days of creditable active service during this period.



7.  Counsel provides three affidavits.

	a.  Corporal (CPL) JT stated the applicant was a friendly and great person, as well as a motivated and elite Soldier.

	b.  Another individual stated the applicant showed leadership but was simply denied or was prevented from being promoted because he did not believe in "sucking up to leaders."  He also stated that the applicant's situation of being discriminated against was not one of a kind, as they, Soldiers of Middle Eastern descent, were unfortunately not fully trusted by other American Soldiers. 

	c.  Sergeant AA stated the applicant proved to be a highly-motivated Soldier with exceptional leadership skills and abilities.  He further describes how other Soldiers, including officers and senior NCOs, made derogatory and racist comments toward 09L Soldiers because of their Arabic background.  Soldiers who complained about this behavior were threatened with facing serious consequences if they continued complaining about this behavior.  He stated an Army National Guard first sergeant called the applicant a "Rag Head" instead of SPC R.  He stated that the applicant, suffering from post-traumatic stress disorder and having anger problems and flashbacks, reacted to the racist first sergeant in an angry tone.  After that the applicant left the training site in fear of being discriminated against even more, harassed, and abused by that senior NCO.  He stated the company leadership did not investigate the incident or listen to the applicant's side of the story; instead he was given NJP, reduced to the lowest rank, and his discharge was initiated.   

8.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice.  Chapter 3 states NJP is 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 may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

	a.  Paragraph 3-28a states the basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of NJP 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.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

	b.  Paragraph 3-37a states the original DA Form 2627 will include allied documents, such as all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies and mandated operating tasks for the AMHRR Management Program.  It states that once placed in the AMHRR, a document becomes a permanent part of that file.  The document will not be removed from the AMHRR or moved to another part of the AMHRR unless directed by competent authority.  

	a.  The version of this regulation in effect at the time stated that for Article 15s (NJP) issued on or after 25 January 1990, the DA Form 2627 for Soldiers in the rank of SPC/CPL or below will not be filed in the AMHRR.

	b.  Case files for approved separations including administrative discharge actions will be filed in the AMHRR.

10.  Army Regulation 15-185 (ABCMR) governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested a personal appearance before the Board, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance.

2.  The applicant's counsel's contentions were carefully considered.  In part, though counsel and the individuals submitting affidavits claim the applicant was discriminated against, there is no evidence beyond their statements to support these claims.  Moreover, the occurrence of such inappropriate conduct by other Soldiers would not have justified the applicant's offenses.  As such, the available evidence does not support the applicant's request for removal of a record of NJP from his AMHRR.

3.  With regard to the decision to impose NJP, there is no evidence that he was deprived of his right to present matters in defense, extenuation, or mitigation or that he was deprived of his right to appeal the NJP.  He did not appeal the NJP.  The punishment imposed was neither unjust nor disproportionate to the offenses, and there is no evidence of any violation of any of the applicant's rights.  

4.  The evidence of record does not appear to show there was a fatal legal or factual error made in the Article 15 proceedings that would support setting aside the NJP action imposed.

5.  The DA Form 2627 documenting his NJP was filed in the applicant's AMHRR as part of the case file for his approved administrative separation.  There is no documentary evidence of error or injustice in the imposition of the NJP or in the filing of the DA Form 2627 as part of his separation case file.  Therefore, there is an insufficient basis upon which 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)                                         AR20130012219



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ABCMR Record of Proceedings (cont)                                         AR20130012219



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