BOARD DATE:	  7 January 2014

		DOCKET NUMBER:  AR20130018514 


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 an Article 15, dated 3 October 2012, from his personnel records and restoration of his previous rank of staff sergeant (SSG), pay grade E-6.

2.  According to Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 2-12(a)(1), an Administrative Separation Board found that he did not commit the offense for which he received the Article 15.  The action of removal of the Article 15 and restoration of his pay grade is requested due to the fact an outside board, comprised of members who do not know him personally, reviewed the same evidence that his command had and found that no crime was committed.  He asks the Board to show him the same justice and fairness when evaluating his request.  He is currently serving with the 6th Battalion, 52nd Air Defense Artillery.

3.  The applicant provides:

* Enlisted Record Brief
* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice))
* Notification of Administrative Separation Hearing memorandum
* Summary of Proceedings
* Separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c – Commission of a serious offense memorandum


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA), in pay grade E-1, on 11 June 2001.  He completed training and was awarded military occupational specialty 29E (electronic warfare specialist).  He was promoted to pay grade E-6 on 1 November 2010.  He reenlisted in the RA on 3 October 2011.

2.  He provided a copy and his records contain a DA Form 2627 which shows on 3 October 2012, at a closed hearing, he accepted nonjudicial punishment under Article 15, UCMJ, for stealing military property, a value of $1,350.00, on or about 15 June 2012.  His punishment included a reduction to pay grade E-5 and suspended forfeiture of pay and extra duty.  

3.  On 3 October 2012, he was found guilty of all specifications and the imposing commander directed the Article 15 be filed in the performance folder of his AMHRR (Army Military Human Resource Records).

4.  He was reduced to pay grade E-5 on 3 October 2012.

5.  He appealed his punishment but his appeal was denied by the next higher commander on 4 October 2012.

6.  His record is void of the complete facts and circumstances surrounding a proposed action to separate him for misconduct, commission of a serious offense, under the provisions of Army Regulation 635-200, paragraph 14-12c.  However, he provides: 

   a.  A Notification of Administrative Board Separation Hearing memorandum, dated 26 February 2013, which notified him of the date of an administrative board separation hearing to investigate the facts and circumstances concerning his discharge from the service.

   b.  A Summary of Proceedings which shows the applicant appeared with counsel before a board of officers to establish the commission of a serious offense, submit a recommendation for retention or separation and characterization of service, and if recommended for separation, determine when the separation occurs.  After careful consideration of the evidence the board found that the applicant had not committed a serious offense per Army Regulation 635-200, paragraph 14-12c.  The board recommended the applicant be retained in the military.  The board of officers did not address removal of the Article 15 or restoration of the applicant’s rank.

7.  On 16 April 2013, the separation authority approved the recommendation for retention of the applicant and directed he be retained in the U.S. Army.

8.  A review of his records located on the integrated Personnel Management System shows the DA Form 2627 filed in the performance folder of his AHMRR. All allied documents pertaining to the DA Form 2627 are filed in the restricted folder.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states that NJP may be 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.

10.  Army Regulation 27-10, paragraph 3-37(1)(a) states the decision to file the original DA Form 2627 on the performance or restricted section in the AMHRR will be made by the imposing commander at the time punishment is imposed.  Paragraph 3-43 contains guidance on the transfer or removal of records of DA Forms 2627 from the AMHRR.  It states application for removal of a DA Form 2627 from a Soldier's AMHRR based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further states that there must be compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

11.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR Management Program.  It also prescribes the composition of the AMHRR.  This regulation states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

12.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  The regulation states in:

   a.  Paragraph 2-12(a)(1) – the board will determine whether each allegation in the notice of proposed separation is supported by a preponderance of the evidence. Paragraph 2-12(a)(2) states the board will then determine whether the findings warrant separation.

   b.  Paragraph 14-12c – Soldiers are subject to discharge for the commission of a serious military or civil offense.  The term processed for separation means that separation action will be initiated and processed through the chain of command to the separation authority for appropriate action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows on 3 October 2012 the applicant accepted punishment under Article 15 for stealing military property.  His punishment included a reduction to pay grade E-5.  He elected to appeal the punishment and his appeal was denied on the same day.  

2.  The applicant's record is void of the proposed separation action under the provisions of Army Regulation 635-200, paragraph 14-12c.  However, it appears in light of the serious offense, his chain of command may have proposed separation action against him and he elected to have his case heard before a board of officers.  

3.  The administrative board was not tasked to determine his guilt or innocence under the UCMJ.  That was the imposing commander's function.  The administrative separation board was tasked to determine if he should be retained or separated.  The administrative separation board found that he had not committed a serious offense and recommended his retention.  The convening authority approved this recommendation and directed the applicant be retained.  During the course of the applicant’s hearing the removal of the Article 15 or restoration of the applicant’s rank was not addressed; his case was under review for a proposed separation.

4.  With regard to removal of the Article 15, he requested a hearing.  At the conclusion of a closed hearing that he requested he was found guilty and reduced to SGT/E-5 for misconduct.  The Article 15 was directed to be filed on the performance folder of his AMHRR.  

5.  His contentions and the documents he submitted were carefully considered.  However, he has not provided convincing evidence that this Article 15 was unjust, in whole or in part, to support its reversal and/or removal from his AMHRR.

6.  He also submitted insufficient evidence of any injustice that led to the Article 15 or to warrant relief as a matter of equity.  By regulation, there must be compelling evidence to support the reversal or removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record.  Absent evidence meeting this regulatory standard there is an insufficient evidentiary basis to support his request.

7.  With regard to restoration to the rank of SSG, at the conclusion of the Article 15 hearing, he was found guilty and reduced in rank for misconduct.  He has not shown he was unjustly or improperly reduced in pay grade.  Therefore, he is not entitled to restoration to the rank of SSG.  

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)                                         AR20130018514





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ABCMR Record of Proceedings (cont)                                         AR20130018514



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