BOARD DATE:	27 March 2014  

		DOCKET NUMBER:  AR20130013248 


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, in effect, restoration of his rank/grade to specialist (SPC)/E-4, payment of back pay and allowances, and placement on the temporary disability retired list (TDRL) in the rank/grade of SPC/E-4.  

2.  The applicant states, in effect, he received two Article 15s under circumstances that led to his unjust reduction to private (PVT)/E-1.  He was ultimately placed on the TDRL in the rank/grade of PVT/E-1. 

	a.  The first Article 15 concerns the "No Contact Order."  The written documentation prescribes instruction in a memorandum with the subject line, "No Contact Order" in every instance together with a DA Form 4856 (Developmental Counseling Form).  

		(1)  Upon notification of the "No Contact Order," prescribed in a DA Form 2873 (Military Protective Order), the standard protective order procedures and chain of distribution were not followed.  His chain of command attempted to correct their error by backdating the DD Forms 2873.  They were notified of the error in generating a memorandum of instruction independently in that his personal and civil rights were violated, the protective measures were inadequate, the notification wasn't conveyed to the spouse and neither the Soldier nor the spouse were made to acknowledge the order on the DD Form 2873.  Further the Fort Carson Provost Marshall has no record of this protective order and neither does their civil counterpart Colorado Springs Police Department of El Paso County, CO. 

		(2)  The DD Form 2873 prescribes all instruction and reveals the inadequacy of the memorandum and the DA 4856.  Further, he was given an Article 15 for this incident despite having been counseled and given permission to attend the Native ceremony at his home in the presence of his wife and family. The Board should review this circumstance in the evidence contained herein and other information available and determine if the judgment of the Article 15 was substantial or unfair.  His review and experience in this matter was not substantiated in that he had a written approval for attendance of the ceremony his mother conducted and that the Department of Defense and the Department of the Army regulation, procedure, protective measures and guidelines to protect the rights and safety of his family and himself weren't followed.

		(3)  The Article 15 for the no contact order was administered for an event at his home with his family that was authorized in the attached counseling; yet, he was punished thereafter.  He was also advised by his command that his rank/grade up to E-4 would be restored upon completion of his treatment at Pathway Home, Napa, CA.  This restoration of rank was reconsidered at a later date and denied after he had a verbal altercation with another patient.  The director witnessed to the command that the incident was beyond his control.  He was medicated, not in an isolated state and directly interacted with other veterans and Soldiers.

	b.  The second Article 15 is related to a positive urinalysis.  He attempted to challenge the chain of custody in that procedure or instruction sent him into the bathroom with an unlabeled bottle along with the observer.  According to Army Regulation 600-85 (Army Substance Abuse Program), the bottle is "nu-identifiable" in that other bottles were on the table when he reported back and the chain of custody was violated.  He was released without the seal being placed on the bottle.  He requested a court-martial and was coached out of it toward the Article 15.  He trusted the command to judge his case fairly and was forsaken.  The Board should review whether the judgment of this Article 15 was also substantial or unfair.  

	c.  There are "Separation of Absentia" documents filed as part of his retirement out-processing record.  The documents indicate chapter versus retirement.  He is requesting a correction to the record and a copy forwarded to him for his record.  He was in the medical evaluation board/physical evaluation board (MEB/PEB) process; yet, upon reaching clearing status he was degraded in a fashion as to be cleared by a representative in his unit without his consent and was listed as a chapter case on the "Separation of Absentia" documents.  Degradation was a priority from them toward him.  They created reasons to demote him.  He had permission to be home for the ceremony with his mother and family.  This ceremony is part of his faith and support from his mother to get him through the time he faced in punishment by the unit.  Procedurally challenging the Unit Prevention Drug and Alcohol Program in audit, one would find bottles leaving the table of issue without labels and in some cases, more than one bottle of urine on the table at the same time awaiting the placement of a label and initials.  The process speaks of errors.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Letter from a Marriage and Family Therapist
* DD Form 199 (Physical Evaluation Board (PEB) Proceedings)
* Multiple DA Forms 4856
* DA Forms 2627, dated 30 December 2010 and 1 March 2011
* Confirmed Urinalysis Test Results
* DD Forms 2873, dated 17 and 28 December 2010 and 4 January 2011
* DA Form 3881 (Rights Warning Procedure/Waiver Certificate)
* DA Form 2823 (Sworn Statement)
* Memorandum titled "Conditions of Liberty"
* Memorandum titled "No Contact Order'
* Separation orders and amendments
* Department of Veterans Affairs (VA) rating decision
* Flight itinerary and multiple email exchange

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army (RA) on 1 June 2000 and he held military occupational specialty 12B (Combat Engineer).  He reenlisted in the RA on 30 July 2003 and 4 August 2008.  

2.  He served in Iraq from 16 November 2007 to 12 February 2009.  He was promoted through the ranks to SPC/E-4 on an unknown date.  He was assigned to the 2nd Special Troop Battalion (STB), 2nd Brigade, 4th Infantry Division, Fort Carson, CO. 

3.  On 19 November 2010, he was counseled by his unit first sergeant regarding the prohibition from taking any nonprescription pharmaceuticals (ingesting, inhaling, or injecting ceremonial substances).  

4.  On 17 December 2010, his commanding officer issued a Military Protective Order prohibiting him from contact or communication with a protected person.  The order stated that he had pending civilian charges for domestic violence against his wife and the order was for protection.  The order, effective until 27 December 2010, also stated he could attend religious ceremonies with written permission and assigned Noncommissioned Officer (NCO) escort from the command.  He also could arrange for a time and a place to meet his children for Christmas without his spouse present.  He acknowledged the order. 

5.  On 30 December 2010, in a closed hearing, after having declined trial by a court-martial, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order from a superior commissioned officer.  His punishment consisted of a reduction to private first class (PFC)/E-3 and 14 days of extra duty and restriction.  

6.  Since he was holding the rank/grade of SPC/E-4, the imposing commander lined through and entered "N/A [not applicable]" in item 4b (Filing Instructions).  In other words, he did not direct filing the original DA Form 2627 in the applicant's Army Military Human Resources Record (AMHRR).  As such, his AMHRR does not contain a copy of the Article 15.

7.  On 4 January 2011, his commanding officer issued a Military Protective Order prohibiting him from contact or communication with a protected person.  The order stated he would reside in the barracks during the entirety of this order and he would check in daily at 0600 hours and 2200 hours with the 2nd STB SDNCO desk to ensure he remained in the barracks.  The order, effective until 19 January 2011, also stated exceptions would be requested in advance and are made and approved by the unit commander.  The applicant acknowledged the order. 

8.  On 5 January 2011, the applicant appealed his punishment to the next higher commander.  However, on 10 January 2011, after a military attorney reviewed the Article 15 and found it legally sufficient, and after consideration of all matters presented in the appeal, the next higher commander denied his appeal.  The appellate authority stated: 

I find that the Soldier knowingly disobeyed a lawful order and the incident timeline supports that the Soldier asked and was granted permission; subsequently, the Soldier was charged with domestic violence and issued a non-contact order.  On this basis, I believe that any responsible person would have known that any previous arrangement was void due to the no-contact order. 

9.  On 24 January 2011, he participated in a unit urinalysis and his urine sample tested positive for marijuana. 


10.  On 1 March 2011, at a closed hearing, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully using marijuana.  His punishment consisted of a reduction to the rank/grade of private (PVT)/E-1, a forfeiture of $733.00 pay per month for 2 months (suspended until 6 September 2011), and 45 days of extra duty.  He elected not to appeal his punishment. 

11.  On 13 September 2011, an informal PEB convened and found his medical condition of post-traumatic stress disorder (PTSD) prevented him from performing the duties required of his grade and military specialty and determined that he was physically unfit.  He was rated under the VA Schedule for Rating Disabilities and granted a combined rating of 70 percent (%). The PEB recommended his placement on the temporary disability retired list (TDRL).  

12.  On 1 November 2011, an official of the U.S. Army Physical Disability Agency (USAPDA) requested a grade determination from the Army Grade Determination Review Board (AGDRB) in order to determine the highest grade satisfactorily served for the purpose of computation of retirement or separation pay.  

13.  On 8 November 2011, after a thorough review of the applicant's personnel records, PEB Proceedings, and all applicable documentation, the AGDRB determined the applicant had accepted an Article 15 on 5 January 2011 while in the grade of E-4 and a subsequent Article 15 on 10 March 2011.  The AGDRB determined the highest grade in which he satisfactorily served for the purpose of computation of disability pay is PVT/E-1, the grade he held on date of separation. 

14.  On 1 March 2012, Headquarters, U.S. Army Garrison, Fort Carson, CO, published Orders 061-0025 ordering the applicant's release from active duty on 1 March 2012 by reason of disability and placement on the TDRL in his retired rank/grade of PVT/E-1 effective 2 March 2012.

15.  He was honorably retired and placed on the TDRL on 2 March 2012 under the provisions of chapter 4 of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of disability – enhanced.  The DD Form 214 he was issued shows in:

* item 4a (Grade, Rate or Rank) "PV1"
* item 4b (Pay Grade) "E-1"
* item 12i (Effective Date of Pay Grade) "2012-05-24"

16.  The applicant provides multiple Development Counseling Forms, multiple no-contact orders, and other memoranda or letters, including a letter from a Marriage and Family Therapist, a memorandum titled "Conditions of Liberty" and another titled "No Contact Order."  He also provides his VA rating decision and flight itinerary in relation to his therapy. 

17.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214 and states that items 4a and 4b show the active duty grade or rank and pay grade at time of separation and are obtained from the Soldier's records (promotion or reduction orders).

18.  Army Regulation 27-10 (Military Justice) 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.  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 3-28 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.  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.  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.  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support setting aside punishment.

	b.  Paragraph 3-37b(1) states that for Soldiers who are in the rank of SPC or corporal and below (prior to punishment), the original will be filed locally in unit NJP or unit personnel files.  Such locally-filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 4b of DA Form 2627 as "not applicable (N/A)."

DISCUSSION AND CONCLUSIONS:

1.  The applicant underwent disability processing for PTSD.  An informal PEB recommended his placement on the TDRL.  Prior to his temporary retirement, the AGDRB reviewed his records and determined the highest grade in which he satisfactorily served for the purpose of computation of disability pay is PVT/E-1, the grade he held on date of separation.  Accordingly, his retirement orders and DD Form 214 listed his rank/grade as PVT/E-1. 

2.  With respect to the first Article 15: 

	a.  The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense of disobeying a lawful order during an Article 15 hearing.  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 offense.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for an Article 15 hearing.

	b.  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.  

	c.  His NJP proceedings were conducted in accordance with law and regulation.  He violated the UCMJ and he was punished for it.  There is insufficient evidence of record and he provides insufficient evidence to show the Article 15 is untrue or unjust.  

3.  With respect to the second Article 15: 

	a.  The evidence of record confirms the applicant tested positive for marijuana during a unit urinalysis.  Again, the commander administering the Article 15 proceedings determined the applicant committed the offense in question.   The evidence of record further confirms the applicant waived his right to a trial by court-martial and opted for an Article 15 hearing. 
	b.  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 elected not to appeal.  His NJP proceedings were conducted in accordance with law and regulation.  He violated the UCMJ and he was punished for it.  There is insufficient evidence of record and he provides no to show the Article 15 is untrue or unjust.  

4.  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.  The applicant did not provide convincing evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings.   

5.  The argument he now presents and/or the circumstances he describes were previously presented and considered by the imposing commanders, and in the first Article 15, by the appeal authority; and they are not sufficient to change the determination of guilt made by the imposing commander.  His dissatisfaction with the outcome of these Article 15s does not invalidate either.  

6.  He received two Article 15s.  The first reduced him from SPC/E-4 to PFC/E-3 and the second reduced him to PVT/E-1.  He held the rank/grade of PVT/E-1 at the time of his separation.  His records, including his retirement order and DD Form 214 correctly reflect his rank/grade.  

7.  The applicant has not demonstrated either NJP action was unjust or untrue, that his NJP should be removed, or that a removal would be in the best interest of the Army.  In view of the foregoing, there is no reason to restore his rank/grade or grant him any 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)                                         AR20130013248



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ABCMR Record of Proceedings (cont)                                         AR20130013248



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