IN THE CASE OF:	  

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20130019300 


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 his request, statement, and evidence to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of his previous request for correction of the applicant's records as follows:

	a.  Set aside the punishment imposed by Article 15, Uniform Code of Military Justice (UCMJ) on 22 February 2011.

	b.  Removal of the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) from the performance section of his Official Military Personnel File (OMPF).

	c.  Retroactive promotion to sergeant first class (E-7), or in the alternative, a relook for promotion to E-7.

2.  Counsel states:

	a.  The applicant was stationed at Fort Bragg, North Carolina sometime in 2009 and he lived in post housing.


	b.  For reasons unknown, he was assigned as a student to Special Operations Medical Training Command (JSOMTC), which is also at Fort Bragg.  He was a staff sergeant (E-6) and the course was to begin on 27 September 2010 and last for 26 weeks.

	c.  Once he got to school he found out he did not have to be there because he was already qualified.  So, he cleared the barracks room assigned to him on 27 September 2010, without ever living in it.

	d.  He had no assignment, but he had a permanent change of station (PCS) to school.  His daily routine was to walk into the school, note his presence, give his phone number in the event he was needed, and be on his way.

	e.  It took the Army a month, but finally on 25 October 2010 he received orders assigning him to Fort Leonard Wood with a report date of 10 December 2010.

	f.  Prior to receiving his orders to Fort Leonard Wood, he discovered that there was an opening in Baumholder, Germany which appealed to him more than Fort Leonard Wood.

	g.  He arranged for a reassignment to Germany and the Enlisted Distribution and Assignments System shows that on 7 November 2010, he was slotted for Germany.

	h.  He wanted to go to Germany; therefore, he waited for orders assigning him to Germany.

	i.  On 7 January 2011, orders were published but not issued until 19 January 2011 assigning the applicant to Baumholder, Germany, with a report date of 10 March 2011.

	j.  The applicant was not actually at the school as previously explained, but that was his proper assignment.

	k.  On 25 October 2010, he received orders to Fort Leonard Wood with a report date of 10 December 2010.  He was subject to these orders when on 23 November 2010 he was asked about his status and he said he had orders.  He did have orders.

	l.  Somehow that question turned into him being absent without leave (AWOL), but the question is from where and when?

	m.  He was charged with being AWOL from 23 November 2010 to 19 January 2011.  If he was AWOL from 23 November 2010 to 19 January 2011, he could not have reenlisted because he would have been flagged.  He reenlisted on 7 December 2010.

	n.  The 19 January 2011 date coincides with the applicant's orders to Germany.  At no time during the entire period of the alleged AWOL was a DA Form 4187 (Personnel Action) issued.

	o.  The 23 November 2010 date makes absolutely no sense.  He was on PCS orders to school on that date and he had orders to Fort Leonard Wood dated 25 October 2010.

	p.  The inquiry is whether the applicant could have been AWOL on any date during the period 23 November 2010 to 19 January 2011.

	q.  On 16 December 2010, the applicant cleared the school awaiting orders to Germany.  The reason he cleared the school was because the entire school was on block leave.

	r.  The applicant's orders to Fort Leonard Wood expired on 10 December 2010 and these orders were superseded on 9 November 2010 by his assignment to Germany with a tentative report date of 19 January 2011.

	s.  The applicant was subject to orders at all times.  At no time did he leave Fort Bragg.

	t.  An Inspector General (IG) investigation revealed that his EMILPO data states he was never AWOL and was present during the timeframe he was supposed to be AWOL.

	u.  In the United States v. Davis, the court said "The Army cannot charge the accused with a criminal responsibility (AWOL) for its own mistake; it cannot convert its negligence into punishable misconduct by the accused."  In this case the Army PCS'd the applicant to a school he already qualified for.  The Army took a month to issue new orders to Fort Leonard Wood, which were then superseded by an assignment to Baumholder, Germany.  At no time was the applicant "out of military control" during the period 23 November 2010 to 19 January 2011.

	v.  The Article 15 should be removed from the applicant's record and his rank should be restored as of the date of the Article 15.  He should be issued back pay and allowances and credit for time in pay grade E-6.  In addition, because 

there was no AWOL, there was no false official statement on 23 November 2010. He did have an assignment to Baumholder, Germany, and his orders to Fort Leonard Wood had not expired.

3.  Counsel provides:

	Tab A – Army Board for Correction of Military Records letter, dated 29 May 2013

	Tab B – Enlisted Record Brief

	Tab C – CIF Fort Bragg Generic Work Sheet, dated 29 September 2010

	Tab D – Orders 298-101, dated 25 October 2010

	Tab E – EPMD eMessage, dated 9 November 2010

	Tab F – Orders 7-95, dated 7 January 2011

	Tab G – U.S. Army Installation Management Command Orders 210-235, 29 July 2010

	Tab H – DA Form 2627, dated 22 February 2011, and DA Form 200 (Transmittal Record), dated 12 October 2011

	Tab I – DA Form 3340 (Request for Reenlistment or Extension in the RA), dated 7 December 2010

	Tab J – JSOMTC Student Out-Processing Checklist, dated 16 December 2010

	Tab K – Letter from U.S. Army Europe Office of the Inspector General (Undated)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130007968, on 21 May 2013.

2.  With prior enlisted service in the Regular Army (RA) and the West Virginia Army National Guard (WVARNG), the applicant enlisted in the RA again on 22 October 2007, in pay grade E-6.

3.  The applicant was assigned to the 82nd Airborne Rear Detachment (Unit Identification Code (UIC) WABEHD), Fort Bragg, North Carolina, when Orders 210-235 (permanent change of station) were published on 29 July 2010 assigning him to D Company, Student Support Command (UIC W1E02H), Fort Bragg, North Carolina, with a reporting date of 30 September 2010.

4.  On 25 October 2010, PCS Orders 298-101 were published assigning the applicant to the United States Army Medical Department Activity Command (MEDDAC), Fort Leonard Wood, Missouri, with a reporting date of 10 December 2010.

5.  The applicant reenlisted in the RA for an indefinite period on 7 December 2010, while he was still at Fort Bragg.  

6.  The orders are barely legible; however, it appears that on 2 January 2011, Orders 7-95 were published assigning the applicant to Baumholder, Germany, with a reporting date of 10 March 2011.

7.  In a Sworn Statement dated 21 January 2011, the applicant's senior noncommissioned officer (NCO) stated he questioned the applicant on 23 November 2010 regarding when he was going to clear the unit.  The applicant stated he had orders, was clearing the Special Warfare Center and School (SWCS) Personnel Administrative Center (PAC), and would be gone in a couple of days.  That was the last time he had seen the applicant until 20 January 2011 when he questioned the S-1 officer on why the applicant has not fallen off the roster.  The S-1 was informed by a Ms. J______ at SWCS PAC that the applicant had been bothering her for his orders for quite some time.  The senior NCO stated he called the applicant's telephone number and he received no answer, so he left a message to call him back.  The applicant did not return his call until he called a second time and left a "heated" message.  It was then that the applicant returned his call.  His senior NCO stated that when he spoke with the applicant and questioned him regarding where he had been, who he had been reporting to, and why he had not been informed of his situation, the only thing the applicant could tell him was he had been reporting to Ms. J_____ on a daily basis.  His senior NCO stated he contacted Ms. J_____ and she stated to the applicant that he needed to stop bothering her and to go to his unit and get his orders if they "came in."


8.  The applicant was counseled on 21 January 2011, for the following offenses:

* Failure to report 
* Conduct unbecoming an NCO
* Lying to a senior NCO
* AWOL

9.  In a Sworn Statement from Ms. J_____ dated 27 January 2011, she stated that she spoke with the applicant on several occasions about his orders to Germany.  She stated she told him not to call everyday to check on his orders and that she would send them to Mr. R____ when completed.  She stated a couple of days later the applicant called again and she told him again that he did not need to call every day and that his orders would be sent to MR. R____.  She stated the applicant said a couple of other questions, but he did ask that when the orders were complete if she could mail him a copy and she said yes.  Ms. J_____ stated that a couple of days later she spoke with Mr. R____ who informed her not to give the applicant a copy of the order, but to let him receive them from Mr. R____.

10.  Although the Developmental Counseling Form shows the date of counseling as 21 January 2011, it appears that the applicant was counseled a second time on 24 January 2011, for being late for formation.  He signed one counseling form on 24 January 2011 and he signed the other one on 25 January 2011, acknowledging that he agreed with the information contained therein.

11.  The applicant accepted nonjudicial punishment (NJP) on 22 February 2011 for being AWOL from 23 November 2010 to 19 January 2011 and for making a false official statement that "he had his orders and was clearing SWCSPAC."  He elected not to demand trial by court-martial.  He requested a closed hearing and to present in person matters in defense, mitigation, and/or extenuation.  After considering all matters presented, his commander imposed punishment of a reduction to pay grade E-5.  The commander directed that the original DA Form 2627 be filed in the performance section of his OMPF.  The applicant elected to appeal the commander's decision and to submit additional matters.  After considering all matters presented in his appeal, the Major General denied the applicant's appeal on 14 March 2011.

12.  Counsel cited U.S. v. Davis, 46 C.M.R. 241 (USCMA 1973).  In Davis the enlisted Soldier was ordered to return home and await orders.  The USCMA rejected the findings of guilty of AWOL because the Soldier was ordered to return home and await orders.  He was absent with authority.  The instructions did not require the Soldier to inquire about his status.

13.  Counsel cited U.S. v. Hale, 42 CMR 342 (1970).  In Hale an officer received orders to go home and wait for his port call.  At trial he was charged with dishonorable failure to return to military control.  The case was prosecuted and affirmed on the theory that the officer was derelict in his duty.  The trial counsel argued that he had a duty to ascertain what happened to his orders.  An officer had a duty to do more than just sit and wait.  The USCMA reversed because there was no evidence that the officer should have been in a place other than where he was.  Because he was not charged with dereliction, a dereliction could not be used to sustain some other unproven change against him.

14.  Army Regulation 27-10 (Military Justice) provides the applicable policies for administration of NJP.  The regulation states that NJP may be imposed to correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by a record of court-martial conviction; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All
Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627.

	a.  Chapter 3 states that a commander will personally exercise discretion in the nonjudicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated, determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial, and determining the amount and nature of any punishment if punishment is appropriate.

	b.  Paragraph 3-28 provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states 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. 

	c.  Paragraph 3-28 states that clear injustice does not include the fact 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.  It further states that normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

	d.  Paragraph 3-18(l) states that punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).  If the imposing commander decides to impose punishment, ordinarily the commander will announce the punishment to the Soldier.  The commander may, if the commander desires to do so, explain to the Soldier why a particular punishment was imposed.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions have been noted and his supporting evidence has been considered.

2.  Insufficient evidence and argument has been submitted to show that the applicant was erroneously issued the Article 15, dated 22 February 2011.

3.  The applicant was supposed to report to Fort Leonard Wood on 10 December 2010.  The orders assigning him to Germany were not published until 2 January 2011.  He should have been at Fort Leonard Wood before the orders to Germany were ever published.

4.  In this case, the counseling statement by the applicant's senior NCO indicates the applicant did not notify his unit that he had not received orders.  Supposedly his senior NCO was referring to the orders for Germany.  The counseling statement indicates the applicant was not forthcoming to his senior NCO.  The record does not contain evidence of the specifics of the daily reporting orders, if any, given to the applicant and the specifics of his requirement to report to his unit.  Counsel states that the applicant was reporting in to his unit on a daily basis.  However, the counseling statement by the applicant's senior NCO indicates that he was not.

5.  The Soldiers in the court cases to which counsel cites were following the orders they were given.  It is unclear what orders the applicant was given.

6.  The applicant received an Article 15 on 22 February 2011 for making a false official statement and for being AWOL from 23 November 2010 to 19 January 2011.  His commander determined he was AWOL from the time he told his senior NCO that he had orders and was clearing the unit in a few days, until the time that his senior NCO contacted him by telephone and he finally returned his call.  

7.  The applicant should have been reporting to his chain of command from the time he realized that he did not have to attend the school because he was already qualified.  Instead, he simply walked into the school, noted his presence, gave his phone number in case he was needed, and was on his way.  He clearly was not soldiering.  Then, as opposed to reporting to Fort Leonard Wood, he decided to wait on orders for Germany.

8.  As a result of receiving that Article 15, he was reduced to pay grade E-5.  His commanding officer believed there was sufficient evidence to support he committed the alleged offenses.  The fact that the applicant and his counsel believes otherwise is not a basis for removing the Article 15 from his OMPF.

9.  He was reduced to SGT/E-5 as a result of the punishment that was imposed against him.  There is no basis for setting aside that punishment.  The Article 15 was properly filed in the performance section of his OMPF.

10.  Counsel has not shown error or injustice in the filing of the Article 15 or the punishment imposed against him on 22 February 2011.  

11.  The applicant is not authorized retroactive promotion or a "promotion relook" to pay grade E-7.  This alleges that he was previously considered for promotion to pay grade E-7 and was denied.

12.  In view of the foregoing, there is an insufficient evidentiary 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:

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 to amend the decision of the ABCMR set forth in Docket Number AR20130007968, dated 21 May 2013.



      _______ _   _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)                                         AR20130019300



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ABCMR Record of Proceedings (cont)                                         AR20130019300



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