IN THE CASE OF:	  

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130016989 


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, the punishment contained in the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 4 January 2010, be set aside and that his rank/grade of sergeant (SGT)/E-5 be reinstated effective 18 February 2010.

2.  The applicant states:

   a.  He was unjustly demoted to the rank/grade of specialist (SPC)/E-4 due to his medical conditions while he was serving in the Honor Guard from April 2009 to November 2010.  He requests a personal appearance before the Board if there is the smallest doubt about approving his request.

   b.  He was given a company grade Article 15 for being late multiple times due to his untreated chronic obstructive sleep apnea, semi-treated post-traumatic stress disorder with nightmares and anxiety, back pain, allergies, attention deficit hyperactivity disorder, etc.  The combination of medications resulted in extreme fatigue, dizziness, trouble concentrating, and many other negative side effects.
   
   c.  He informed his chain of command of his medical issues, appointments, treatment medications and their side effects.  He pleaded with his chain of command to be considerate and mindful of tasking him for duties which required attention to detail or long waking hours; however, they ignored him and endangered himself, other Soldiers, and sensitive materials when he was clearly unable to perform these duties safely.
   
   d.   After "manning up" and accepting the company grade Article 15, he hoped he would be given a "clean slate."  Instead he was mistreated and publicly humiliated as a noncommissioned officer (NCO) while performing incredibly demeaning extra duty tasks, many in violation of Army regulations.
   
   e.  Shortly after completing his punishment for the company grade Article 15, he received the field grade Article 15 that stripped him of his hard-earned rank.  He had legal representation who helped him with his appeal; however, he believes the imposing commander was not given all of the information before his appeal was denied.
   
   f.  He informed his chain of command that he was still having sleeping problems, was on multiple medications, and to please be understanding and supportive.  He would ask a fellow NCO to swing by his office to ensure he was awake, but was failed by them repeatedly and ultimately counseled.  He was later counseled for a small mistake while he was the Charge of Quarters when he did not fill out a form properly on the doors he was required to check.
   
   g.  Prior to performing the duty, he informed his command he did not believe he was fit to be the NCO in charge due to his sleeping problems and multiple medications he was on.  His chain of command ignored him and punished him for failing.  He was told off-line many times they did not feel he deserved his rank because he was a "poor example of an NCO" and because he could not perform physical training to the "Honor Guard" standard.  
   
   h.  He does not feel either of the two counseling statements used to fuel the field grade Article 15 were justified or even his fault.  He took action to reach out to his fellow NCOs and his chain of command to make sure he was awake prior to the start of work.  When he was found asleep because his fellow NCO didn't wake him up, it was his fellow NCO who counseled him.  
   
   i.  He held the rank of SGT satisfactorily for over a year and should not have had to endure this injustice.  He would have made the arguments about his sleep apnea and asthma had he known he had the medical conditions at the time.  Unfortunately, he did not discover officially through diagnosis that he had asthma and sleep apnea until his chain of command had gotten rid of him and sent him to Fort Bragg, NC.  

   j.  Near the end of his Physical Evaluation Board (PEB), he gave the Article 15 to his PEB Liaison Officer who stated he would hear a decision about his rank before he was retired; however, in his last week of active duty he was told he would have to remain on active duty until a decision was made by this Board.  He opted to retire rather than risk being kicked out for the same reasons he was being retired for.  

3.  The applicant provides:

* a self-authored statement
* a list of dates
* portions of his medical records
* DA Form 2627
* DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings)
* associated administrative documents
* medical research information

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 August 2003.  He was promoted to SGT/E-5 on 1 January 2009.

2.  The applicant provides evidence which shows that on 19 November 2009 while holding the rank/grade of SGT/E-5 and in a closed hearing, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to 0630 accountability formation on 8 and 28 October 2009.  His punishment consisted of forfeiture of $583.00 pay, suspended, to be automatically remitted if not vacated before 18 May 2010; 14 days of extra duty; restriction to the limits of company area, dining/medical facility, and place of worship for 14 days, suspended, to be automatically remitted if not vacated before 18 May 2010; and an oral reprimand.  The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's Official Military Personnel File (OMPF); however, the document is not located in his OMPF.  The applicant elected not to appeal his punishment.

3.  The applicant provides evidence which shows that on 20 January 2010 while holding the rank/grade of SGT/E-5 and in a closed hearing, he accepted NJP under the provisions of Article 15 of the UCMJ for willfully failing to properly conduct security checks, as it was his duty to do.  His punishment consisted of reduction to the rank/grade of SPC/E-4, a forfeiture of $1,146.00 pay for two months, suspended, to be automatically remitted if not vacated before 19 July 2010; and 45 days of extra duty.  The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's OMPF; however, this document is not present in his OMPF.  The applicant elected to appeal his punishment.

4.  On 18 February 2010, the appellate authority denied the applicant's appeal and concluded that the proceedings were conducted in accordance with law and regulation and the punishment imposed was not unjust or disproportionate to the offense committed.

5.  On 9 January 2013, he was honorably retired, in the rank/grade of SPC/E-4 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, based on disability, permanent (enhanced).  He completed 9 years, 4 months, and 14 days of active service this period.

6.  The applicant's record does not contain and he does not provide evidence which shows he was evaluated by proper medical authority at the time, which resulted in the applicant receiving a physical profile or medical recommendation which would have prohibited the applicant from performing his assigned duties.  

7.  The applicant provides:

   a.  Several pages of his medical records which document his chronic ailments, prescription history, and asthma-related finding beginning in July 2007.  He also notes that at the beginning of his troubles, he had started seven new medications during the relevant timeframe.

   b.  A copy of his DA Form 199, which shows he received service connection for asthma with an evaluation of 50%, effective 20 September 2012.  
   
   c.  Numerous pages of information pertaining to sleep apnea, asthma, and his medications and their side effects.  He believes they played a role in the severe side effects from his medications making it impossible for him to function normally.
   
   d.  A letter from the Department of Veterans Affairs, dated 16 July 2013, which increased his service connected compensation.

8.  Army Regulation 27-10 (Military Justice), chapter 3 (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 UCMJ, Article 15.  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 UCMJ, Article 15 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 UCMJ, Article 15 or 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 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.

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  Additionally, applicants may be represented by counsel at their own expense. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

2.  The evidence of record confirms the imposing commander administering the Article 15 proceedings, during a closed Article 15 hearing and after consideration of all the evidence, determined the applicant committed the offense in question.  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 charged offense(s).  

3.  The imposing commander's function is to make a decision as to whether or not a Soldier committed the offense in question and render an appropriate punishment if necessary.  These decisions will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence or they failed to follow the applicable regulations.  

4.  The applicant now contends, in effect, that he was so impaired by his medical conditions and the multiple medications he was prescribed that he should not be held responsible for his actions.  However, his records do not indicate and he provides no evidence which shows he was ever medically evaluated at the time and determined that he was not capable of performing his duties without limitation.  His dissatisfaction with the outcome of this Article 15 does not invalidate it.  He violated the UCMJ and was punished for it.  

5.  The evidence of record shows 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.  However, the applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing.  While the applicant exercised his right to appeal, he 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, or that his rights were violated in any way.

6.  There is neither an error nor an injustice and there is no valid reason to set the Article 15 aside or to restore his rights, privileges, or rank.

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)                                         AR20130016989



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ABCMR Record of Proceedings (cont)                                         AR20130016989



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