IN THE CASE OF:	  

		BOARD DATE:	    3 September 2013

		DOCKET NUMBER:  AR20130013380 


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 setting aside of a DA Form 2627 (Record of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)),
dated 8 August 2011.

2.  The applicant states he was recognized for his outstanding leadership from June to September 2010.  His commander selected him to deploy to Afghanistan as a medical supply specialist.  He excelled in his duties and he reenlisted.

	a.  He suffers from migraine headaches and they returned in November 2010.  In mid-January 2011 he fell off a truck and injured his back.  He was issued two separate profiles for his medical conditions.  The first sergeant (1SG), 
1SG M---, told him that he needed a healthy noncommissioned officer (NCO) and continually threatened him with reduction in rank.

	b.  He was medically evacuated 2 weeks prior to his scheduled redeployment.  He rotated to Fort Campbell, KY and he did not receive an award for his service.

	c.  On 27 June 2011, during a company run, the 1SG shoved him.  The applicant filed a Military Police (MP) Report.  Since there were no visible injuries, he was told that it was not considered an assault.  However, about 2 months later, he was told that the MP Report should have been forwarded for investigation.  He adds that the 1SG assaulted another NCO during a battalion 
run, but nothing was done about that incident either.  In fact, the chain of command attempted to cover up the second incident.
	d.  1SG M--- learned of the MP Report and pursued a Field Grade Article 15 against him.  The applicant wanted to ask for a court-martial, but Captain (CPT) Christopher C---, his Trial Defense Services (TDS) attorney, advised against it because Soldiers who witnessed the incident would not come forward and testify.

	e.  In August 2011, he received a Field Grade Article 15 for incidents in Afghanistan.

		(1)  The TDS attorney told the applicant he would speak in his behalf at the Article 15 hearing.  However, 15 minutes prior to the hearing he told the applicant he could not make it.

		(2)  The applicant had just come from the Skyline Mental Health Hospital, he was on medication, and he did not clearly understand what was going on at the Article 15 hearing.  At the time, he was trying to physically heal from his deployment injuries and his wife was fighting lung cancer.

		(3)  Lieutenant Colonel (LTC) Matthew S----, the battalion commander, proceeded with the Article 15 hearing.  The applicant did not speak at the hearing, he had nobody in his chain of supervision present, and he was not allowed to present evidence in his defense.  He adds the entire process was unfair.

		(4)  His punishment was reduction from the rank/grade of sergeant (SGT)/E-5 to specialist (SPC)/E-4 and a forfeiture of one-half of his pay for
2 months.

	f.  He appealed the punishment to Colonel (COL) Joseph M----, the brigade commander.  The applicant was still on medication, he could not properly function mentally, and he was unrepresented.  He adds that Command Sergeant Major (CSM) T--- encouraged witnesses to make false statements against him and COL M---- terminated the hearing and denied his appeal.

	g.  At that point, he asked to speak to Major General M----.  Shortly thereafter, administrative separation proceedings were initiated against him.

h.  He states he was denied over $1,200.00 in travel pay for his temporary duty.  He sought assistance through Inspector General (IG) channels, including the local, Department of the Army, and Department of Defense IGs.  He was told the local IG office would assist him, but it did not.

	i.  Two psychiatrists advised COL M--- that the applicant should be in the Warrior Transition Unit (WTU), but he ignored them.
	j.  He has written his congressman and congresswoman, his senator, and the president and they have been of assistance in getting him into the WTU.

	k.  At his administrative separation board, Doctor F---, a psychiatrist who had never conversed with the applicant, wrote a false statement about him.  The reports were that he was financially irresponsible and he had written to congress.

	l.  Major (MAJ) Joshua B---, another TDS attorney, represented him at the administrative separation board and challenged the chain of command's attempt to deny the applicant's right to have an African-American on the panel.  The issue of the assault by the 1SG was raised; however, nothing was done in his case.

	m.  He has since been reassigned to Fort Polk, LA and he is currently assigned to the WTU going through the Medical Evaluation Board process.

3.  In support of his request the applicant provides a self-authored statement, a copy of the DA Form 2627, three memoranda of support, and a medical record.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard of the United States from 17 July 1991 through 16 July 1997, U.S. Army Reserve from 19 September 2000 through 13 November 2003, and U.S. Air Force Reserve from 14 November 2003 through 4 April 2005.

2.  The applicant enlisted in the Regular Army (RA) on 5 April 2005.  He was promoted to SGT/E-5 on 1 February 2008.

3.  Orders CP-231-0033, issued by Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, dated 19 August 2010, deployed the applicant in a Temporary Change of Station (TCS) status to Afghanistan, effective
13 September 2010, in support of Operation Enduring Freedom (OEF) for a period not to exceed 365 days.

4.  Orders A-03-104706, issued by Landstuhl Regional Medical Center, Germany, dated 5 March 2011, ordered the medical evacuation of the applicant to the U.S. Army Medical Activity (MEDDAC), Fort Campbell, on 5 March 2011.

5.  Orders 241-004, issued by U.S. Army MEDDAC, Fort Campbell, dated
28 August 2012, reassigned the applicant to the Warrior Transition Battalion, Fort Polk, LA on 17 September 2012.  The order shows his rank as specialist (SPC).

6.  A review of the applicant's Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), failed to reveal a copy of the DA Form 2627, dated 8 August 2011.

7.  In support of his application the applicant provides:

	a.  the front page of a DA Form 2627 with a Continuation Sheet, dated
8 August 2011, that shows:

   	(1)  at Fort Campbell, on 27 June 2011, he:

* willfully disobeyed a lawful command from his superior commissioned officer
* was disrespectful in language toward a superior NCO
* was disrespectful in deportment toward a superior NCO
* was disrespectful in deportment and language toward an NCO

		(2)  at Forward Operating Base Fiaz, Afghanistan, on 11 February 2011, he was derelict in the performance of duties in negligently failing to secure an AT-4 anti-tank missile.

		(3)  the applicant was advised of his rights and afforded the opportunity to consult with counsel.

		(a)  he did not demand a trial by court-martial.  He requested a closed hearing.  A person to speak in his behalf was not requested.  He indicated that matters in defense, extenuation, and/or mitigation would be presented in person.

		(b)  on 11 August 2011, in a closed hearing and having considered all matters presented, the Commander, 426th Brigade Support Battalion,
1st Brigade Combat Team, 101st Airborne Division (Air Assault), found the applicant was guilty of the misconduct.

		(c)  in Item 4b, the imposing authority directed the DA Form 2627 be filed in the performance section of the applicant's (AMHRR).

		(d)  in Item 5, the applicant placed his initials in the block "I appeal and submit additional matters," he entered the date as "18 August 2011," and he placed his signature on the document.

		(e)  The reverse side of the DA Form 2627 was not provided.  (Thus, information concerning the punishment imposed, supporting documents, and appeal process is not available.)
	b.  a memorandum from CPT Christopher C---, TDS, to LTC Matthew S---, battalion commander, subject:  Field Grade Article 15 (Applicant), dated
18 August 2011.  CPT C---- offered the following in behalf of the applicant:

		(1)  He stated the incident in Afghanistan happened when the applicant was on a profile.  Although a commander can authorize the violation of a Soldier's profile, the body armor the applicant had to wear and the length of time he remained on duty significantly contributed to the alleged misconduct.

		(2)  He stated the applicant's spiritual faith does not allow the taking of the Lord's name in vain or the use of curse words.  He had previously asked his chain of command not to address him with curse words.  Their continued use was seen as disrespectful and an insult to his faith.

		(3)  The applicant's wife was undergoing medical treatment for cancer and, as a result, his family was under severe stress.

		(4)  The applicant was being treated for migraines, depression, anxiety, suicidal thoughts, back pain, and he was taking numerous prescribed medications.

		(5)  He concluded that the applicant's medical issues are the cause of conflict with the chain of command.

	c.  a memorandum from MAJ Joshua B----, TDS, to COL Joseph M----, brigade commander, subject:  Article 15 Appeal (Applicant), dated 29 August 2011.  MAJ B---- offered the following in behalf of the applicant:

		(1)  He stated the Article 15 and/or the reduction in rank should be set aside because the punishment was excessive and the hearing was not conducted in accordance with Army regulations.

		(2)  He stated the applicant was denied his right to present matters in defense, extenuation, and mitigation, although he brought evidence to refute the charges against him and medical records regarding his mental health.  However, the commander did not review or consider the items.

		(3)  The applicant was not allowed to hear the unsworn testimony of witnesses against him or offer evidence to contradict the testimony.

		(4)  The reduction in rank was excessive because it wipes out 7 years of successful service for two minor, unfortunate incidents.

		(5)  MAJ B--- then restated essentially the same arguments offered by CPT C--- (TDS) in his memorandum to the battalion commander.

	d.  a Standard Form 600 (Chronological Record of Medical Care), dated 26 April 2011, that shows the applicant requested update of his profile for lower back pain and migraines.  He indicated his back pain had worsened after he slipped and hit his back while getting into a truck.  It also shows he reported that his 1SG threatened to reduce him in rank because of his health.

	e.  a letter written by the applicant's wife, dated 30 March 2013, wherein she states:

		(1)  the applicant endured constant harassment and humiliation at the hands of his chain of command.  During his deployment, he was forced to work while he was in pain and he was also threatened with reduction in rank.  He redeployed and his chain of command followed through with their threat.

		(2)  the applicant's chain of command was neglectful and uncaring.  He suffers from anxiety and migraines and is being treated for combat stress.  She adds that all of their pleas for assistance and due process have been ignored.

8.  Army Regulation 600-8-104 (Army Military Human Resources Records) 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.  The
DA Form 2627 will be filed in either the performance or restricted section of the AMHRR, as directed by item 4b of the DA Form 2627.

9.  Army Regulation 27-10 (Military Justice), chapter 3 (Nonjudicial Punishment (NJP)), implements and amplifies Article 15, UCMJ, and Part 5, Manual for 
Courts-Martial.  Paragraph 3-28 (Setting aside and restoration) provides that 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.

	a.  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, UCMJ.  In addition, the imposing commander or successor-in-command may set aside some or all of the findings in a particular case.  If all findings are set aside, then the Article 15, UCMJ itself is set aside and removed from the Soldier's records.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15, UCMJ or punishment has resulted in a clear injustice.  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example 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.  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

	c.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the DA Form 2627, dated 8 August 2011, should be set aside because:

* he received the NJP 2 months after the incident in Afghanistan
* he was on prescription medications, did not clearly understand the proceedings, and was not allowed to present his evidence at the hearing
* his attorney was not able to attend his Article 15 closed hearing
* his wife was fighting lung cancer and his family was under severe stress
* he could not properly function mentally and he was unrepresented
* he was not allowed to hear the unsworn testimony of witnesses against him or offer evidence to contradict the testimony

2.  A copy of the DA Form 2627 is not filed in the applicant's AMHRR and the applicant did not provide a complete copy of the NJP.  However, the front page of the DA Form 2627 shows the NJP was properly administered by the battalion commander and that the applicant indicated he appealed the NJP.

	a.  The applicant contends his TDS attorney was not present for the closed hearing.  However, the evidence of record shows the applicant indicated that he did not request a person to speak in his behalf at the closed hearing.  Moreover, the evidence of record shows the TDS attorney provided a memorandum to the battalion commander requesting consideration of specific matters when reviewing the applicant's Article 15.

	b.  The reverse side of the DA Form 2627 is not available.  However, the evidence of record shows the applicant's TDS attorney for the appeal provided a memorandum to the brigade commander requesting the Article 15 be set aside because the punishment was excessive and the Article 15 was not administered in accordance with Army regulations.

	c.  It is reasonable to conclude that the information in the two memoranda provided by the TDS attorneys to the battalion and brigade commanders was considered during the Article 15 closed hearing and appeal, respectively.

3.  The regulations governing the Board's operation require that the Article 15 proceedings must be presumed to have been in accordance with applicable law 
and regulations unless the applicant can provide evidence to overcome that presumption.  The applicant has not provided evidence to overcome that presumption.  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 or set aside.  The DA Form 2627 is not filed in the applicant's AMHRR.  However, considering all the facts of this case and in the absence of evidence to the contrary, the evidence is insufficient to set aside the DA Form 2627.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  To ensure this decision results in no unintended harm to the individual concerned, this Record of Proceedings and all documents related to this appeal will be returned to this Board for permanent filing.  The Record of Proceedings and associated documents will not be filed in the individual's Army Military Human Resource Record.



      _______ _ 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)                                         AR20130013380



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ABCMR Record of Proceedings (cont)                                         AR20130013380



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