BOARD DATE:	  30 April 2014

		DOCKET NUMBER:  AR20140001366 


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 that "(1) rank deduction [sic] from pay grade E-4 to E-3 beginning on 20 June 2011 and lasting until 20 September 2012 be removed as to correct the unjust rank deduction [sic]" and "(2) credit the $1,002.00 debt initiated in February 2012 and the difference in pay from 1 February 2012 to 
20 September 2012."

2.  The applicant states "the evidence provided clearly presents a hostile command environment."

   a.  "The UCMJ [Uniform Code of Military Justice] in question was not consistent with AR [Army Regulation] 600-63 [Army Health Promotion], chapter 7 [Environmental Health], paragraph 7-3(h) [use of tobacco products during initial entry training (IET)] nor was it commensurate with the alleged offense if the 
AR 600-63 was nonexistent.  The UCMJ, subsequent rank deduction [sic], debt of $1,002.00, medical board attempt, and mental evaluation were conducted as reprisal for making protected communications to the USAICE IG [U.S. Army Intelligence Center of Excellence, Inspector General]."

   b.  "The $1,002.00 debt was intentionally planned by withholding the proper documentation from the S-1 for processing.  This is evident by: (1) the amount of documentation electronically generated that still presented [him] as E-4, including but not limited to [his] ERB [Enlisted Record Brief], LES [Leave and Earnings Statement], medical documentation, and the company roster; (2) the company received the PCS [permanent change of station] orders 3 weeks prior to the date that they decided to resubmit the rank deduction [sic]."
3.  The applicant provides copies of documents as listed on his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 20 September 2010 for a period of 4 years and 8 weeks.

2.  A copy of the nonjudicial punishment (NJP) action is not filed in the applicant's Army Military Human Resource Record (AMHRR).  (A copy of page 2 of a 
DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 26 May 2011, was provided by the Chief, Department of the Army (DA) Promotions, U.S. Army Human Resources Command (HRC).  The document will be summarized and discussed later in this Record of Proceedings in context with other NJP documents that are available for review by the Board.)

3.  The applicant was reduced from specialist (SPC)/pay grade E-4 to PFC (E-3) effective 20 June 2011 as a result of NJP.

4.  He was promoted to SPC (E-4) effective 20 September 2012.

5.  In support of his application the applicant provides the following information and documents:

   a.  He offers an outline of the timeline of the protected communications and reprisal actions, as follows:

* on 26 or 27 January 2011, he initiated a protected communication via the company commander's open door policy regarding the improper UCMJ process and harassment from 1 February to 8 March 2011
* on 3 May 2011, he reported reprisal to the USAICE IG
* on 10 May 2011, adverse action was initiated against him that resulted in UCMJ on 20 May 2011 and reduction to E-3
* on 1 June 2011, he sent an email to the USAICE IG outlining reprisal
* on 22 June 2011, he followed-up with the USAICE IG
* on 4 August 2011, he was referred to a Medical Evaluation Board
* on 11 November 2011, he was referred for a Mental Health Evaluation
* on 28 November 2011, a pay action was resubmitted initiating a $1,002.00 debt
* on 6 December 2011, he reported reprisal to the USAICE IG

   b.  An Office of the Staff Judge Advocate, USAICE, Fort Huachuca, AZ, memorandum, dated 4 February 2011, subject:  Request for Legal Service, that shows the commander requested vacation of suspension of punishment of a Summarized Article 15 pertaining to the applicant.

   c.  A DA Form 2627-1 (Summarized Record of Proceedings Under Article 15, UCMJ), that shows, on 2 March 2011, the applicant was informed that the commander was considering imposition of NJP under the provisions of Article 15, UCMJ, Summarized Proceedings, for the following misconduct:  "In that you, at or near Fort Huachuca, AZ, on or about 31 January 2011, were disrespectful in language toward First Sergeant Antonio B----, a superior noncommissioned officer."

    	(1)  An undated memorandum from the applicant to the Commander, 
305th MI Battalion that shows the applicant appealed the NJP imposed on 
2 March 2011.

    	(2)  The DA Form 2627-1 does not contain any signatures; it shows a diagonal line through the document with the entry "Withdrawn - No Chargeable Offense" and what appear to be initials.

   d.  Page 2 of a DA Form 2627 [provided by the Chief, DA Promotions, HRC] pertaining to the applicant shows in:

    	(1)  item 6 - The following punishment is imposed:  "Reduction to private first class (PFC) (E-3), suspended, to be automatically remitted if not vacated before 14 November 2011; forfeiture of $403.00 pay, suspended, to be automatically remitted if not vacated before 14 November 2011; extra duty for
14 days; restriction to the limits of company area, dining/medical facility, and place of worship for 14 days."

    	(2)  item 7 - I have considered the appeal and it is my opinion that:  "The proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust nor disproportionate to the offense committed."  It also shows Captain Gregory A. V-----, the reviewing Judge Advocate General (JAG) Corps officer, placed his signature on the document on 23 May 2011.

    	(3)  item 8 - After consideration of all matters presented in the appeal, the appeal is:  "X" in the "Denied" box and Lieutenant Colonel (LTC) Monroe C. J----,  Commander, 305th MI Battalion signed the document on 26 May 2011.

    	(4)  item 9 - I have seen the action taken on my appeal, shows the applicant placed his signature on the document on 26 May 2011.

   e.  A DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) pertaining to the applicant that shows in:
   
    	(1)  Type of Supplemental Action block, an "X" in the "Vacation of Suspension" box;

    	(2)  item 5 (Vacation of Suspension):

    	(a)  "The suspension of the punishments of reduction to PFC (E-3), forfeiture of $403.00 pay, both suspended, to be automatically remitted if not vacated before 14 November 2011, imposed on the [applicant] on 18 May 2011 are hereby vacated.  The unexecuted portions of the punishment will be duly executed."

    	(b)  The vacation was based on the offense that, the applicant, “having knowledge of a lawful order issued by CPT D--------, to wit: paragraph 1-14, B Co, 305th MI BN SOP, dated on 3 February 2009, an order it was your duty to obey, failed to obey” the same by wrongfully possessing and smoking a cigarette on 10 June 2011.

    	(3)  The Authentication block shows "By My Order," an "X" in the "As the officer who imposed the punishment," and CPT Jackson D---------, Commander, Company B, 305th MI Battalion, signed the document on 20 June 2011.

   f.  A DA Form 1559 (IG Action Request System), Case TJ11-0314, and email message, dated 1 June 2011, show the applicant alleged trainee abuse.  The IG official conducted "Teach and Training" sessions with the applicant on trainee responsibilities, Army performance, counseling, and NJP procedures, and also contacted officials in the applicant's unit for information related to his claims.  The case was closed on 28 June 2011.

   g.  A list of medical appointments, individual sick slips, medical records, and physical profiles that offer evidence of the applicant's medical treatment from 
8 December 2010 through 13 December 2011 with respect to his right knee injury, physical profile and physical therapy; physical profile for shaving; and his smoking cessation program and treatment.
 
   h.  U.S. Army Medical Department Activity (MEDDAC), Fort Huachuca, AZ, memorandum, dated 4 August 2011, that shows Major (MAJ) Kenneth A. F---, Officer in Charge (OIC), MI Student Clinic, diagnosed the applicant with Obsessive Compulsive Disorder; Major Depression, Single Episode with Psychotic Features; Depression with Anxiety; and Tourettes Syndrome.  He recommended the applicant be referred to a Medical Evaluation Board (MEB).
   i.  A Request for Mental Status Evaluation, dated 10 November 2011, that shows the applicant was referred for evaluation regarding his eligibility for administrative separation.

   j.  MEDDAC, Fort Huachuca, AZ, memorandum, dated 17 November 2011, that shows MAJ Kenneth A. F---, OIC, MI Student Clinic, notified the applicant's commander that:

* on 4 August 2011, he responded to a "Fit for Duty Evaluation Request" for the applicant and recommended that an MEB was the best option
* since then, through subsequent visits with the applicant, his previous concerns related to behavioral health issues had changed
* he recommended the applicant for continued service in the Army

   k.  MEDDAC, Fort Huachuca, AZ, memorandum, dated 13 December 2011, that shows MAJ Kenneth A. F---, OIC, MI Student Clinic, notified the applicant's commander that:

* on 10 June 2011, the applicant requested a smoking cessation program
* he was prescribed Bupropion, an anti-depressant, which is normally used in conjunction with a gradual tapering down on smoking
* the newer, more effective medications (Chantix) were not available

   l.  A DA Form 1559, Case TJ12-0089, shows the applicant sought assistance in reviewing the vacation of the suspended punishment portion of his NJP.  The IG contacted officials in the applicant's unit for information related to his claims.  The applicant was informed that his statements and documents provided did not constitute trainee abuse and the case was closed on 14 March 2012.

   m.  On 20 June 2012, in response to a Freedom of Information Act request submitted by the applicant, the Deputy Legal Advisor, Department of the Army Inspector General (DAIG), provided the applicant releasable documents in DAIG cases TJ 12-0089 and TJ 11-0314.

   n.  On 10 July 2012, the applicant submitted allegations of cruelty and maltreatment, and improper investigations by the USAICE IG.  A five-page document addressed to the Assistant IG, USAICE, Fort Huachuca, AZ, undated, also shows that the applicant set forth allegations relating to academic integrity and discriminatory comments in January 2011, the imposition of NJP beginning in February 2011, harassment during May 2011, referral to an MEB in August 2011, and reduction in rank in November 2011.

   o.  On 4 December 2012, the DAIG notified the applicant that his allegations of reprisal, submitted to the Defense Hotline on 30 July 2012, were reviewed and it was determined that the complaint was not timely filed.

   p.  USAICE, Fort Huachuca, AZ, memorandum, dated 26 March 2012, shows Colonel Roger N. S------, Chief of Staff, responded to the Honorable Kay B----- 
H--------, U.S. Senator, regarding an inquiry on behalf of the applicant.
   
    	(1)  He explained that in a proceeding conducted on 18 May 2011 in accordance with Article 15, UCMJ, the applicant was found guilty of violation of the UCMJ and received punishment (he specified the punishment in detail).  He informed her that the applicant appealed the NJP, the proceedings were reviewed by a JAG Corps officer and found to be conducted in accordance with law and regulation, and that the punishments imposed were not unjust or disproportionate to the offense committed.

    	(2)  The appeal authority reviewed the proceedings, the evidence, and the applicant's appeal submissions and denied the applicant's appeal on 26 May 2011.

    	(3)  He added that on 20 June 2011, in a proceeding conducted in accordance with Article 15, UCMJ, the applicant was found guilty of violation of the UCMJ.  The suspension of the previously-imposed (suspended) punishments of reduction in grade and forfeiture were vacated, and the applicant was informed of the action on 20 June 2011.

    	(4)  Due to a clerical error, the reduction in rank was not executed until
5 December 2011.  However, the clerical error does not invalidate the reduction and forfeiture of pay.

    	(5)  With regard to the applicant's claim of being demeaned, bullied, harassed, and humiliated by the command, the command received inquiries from the Fort Huachuca IG in March and December 2011.  The command inquiries conducted in both instances did not substantiate the applicant's claims.

6.  In the processing of this case, an advisory opinion was obtained from the Chief, DA Promotions, HRC.  The advisory official indicated that records available at the Junior Enlisted Promotions Section show the applicant was reduced to PFC (E-3) with an effective date of 20 June 2011 in conjunction with an Article 15 the punishment of which was vacated on 14 November 2011.  He added that a review of the applicant's case revealed his request for correction of his military records had been denied.

7.  The applicant was provided a copy of the advisory opinion in order to have the opportunity to comment.

8.  On 22 March 2014, the applicant stated "the administrative differences" concerning the NJP outlined by the advisory official were not contested in his application.  He restated his requested corrections and requested an extension of time to respond to the advisory opinion.  However, a subsequent response was not received.

9.  Army Regulation 600-63 prescribes policies and responsibilities for the Army Health Promotion Program.  Chapter 7, paragraph 7-3(h), shows the use of any tobacco products during IET is governed by U.S. Army Training and Doctrine Command Regulation 350-6 (Enlisted IET Policies and Administration), dated 
30 December 2005.  Cadre and faculty of any military school will not use tobacco products in the presence or view of students while on duty.  All personnel attending training provided by the Army, regardless of service, will adhere to Army policy regarding the use of tobacco products.  Commandants will evaluate their policies and practices to eliminate conflicting messages on use of tobacco products.

10.  Army Regulation 600-8-104 (Army Military Human Resources Records) provides policies, operating tasks, and steps governing the AMHRR.  Table B-1 (Authorized Documents) provides guidance for filing the DA Form 2627.  It shows no UCMJ, Article 15, or supporting documents will be filed for E-4 and below.

11.  Army Regulation 27-10 (Military Justice), chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.  Chapter 3 (NJP) provides in:

   a.  Paragraph 3-37 (Distribution and filing of DA Form 2627 and allied documents), subparagraph b (Original of DA Form 2627 - Place of filing), for Soldiers who are at 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 (GCM) Convening Authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 4b of DA Form 2627 as "not applicable."  When the transfer of a Soldier to a new GCM jurisdiction is for the purpose of receiving medical treatment, temporary duty (TDY) or deployment, the Article 15, UCMJ form will accompany the Soldier to the new GCM, and back to the imposing GCM if the Soldier returns to that imposing GCM jurisdiction following the medical treatment, TDY, or deployment.  The 2-year rule will apply in these situations.
   b.  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.
   
    	(1)	 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.  

    	(2)  Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

    	(3)  In cases where administrative error results in incorrect entries on a 
DA Form 2627 or DA Form 2627-1 the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.

    	(4)  The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed.  When a commander sets aside any portion of the punishment, the commander will record the basis for this action on DA Form 2627-2.  When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action.

12.  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, in effect, that the suspended portion of the punishment imposed by NJP on 18 May 2011 (vacated on 20 June 2011), should be set aside, his rank restored effective 20 June 2011, cancellation of a $1,002.00 debt, and payment of all pay and allowances resulting from restoration of his rank because the NJP he received was inconsistent with Army regulations and in reprisal for him making protected communications.

2.  A copy of page 1 of the DA Form 2627 in question is not available for review. The governing Army regulation does not authorize the filing of the form in the applicant's AMHRR and the applicant did not provide a complete copy of the NJP.  However, a copy of page 2 of the DA Form 2627 shows a JAG Corps officer reviewed the NJP imposed on 18 May 2011 and indicated that it was properly administered.  In addition, the battalion commander considered all matters presented in the applicant's appeal, he denied the appeal, and the applicant was made aware of the action taken on the appeal.

3.  A copy of a DA Form 2627-2 shows, on 20 June 2011, the suspension of the punishment of reduction to PFC (E-3) and forfeiture of $403.00 pay were vacated and ordered duly executed.  The vacation was based on the applicant being found guilty of the offense of failing to obey a lawful order.

4.  The evidence of record shows the applicant's reduction in rank was not executed until 5 December 2011; however, the clerical error that resulted in the delay did not invalidate the reduction and forfeiture of pay.

5.  There is no evidence of record that shows the commander who imposed the punishment, a successor-in-command, or a superior authority set aside any of the punishment imposed upon the applicant under the NJP under review.

6.  The applicant provides evidence of his protected communications with the company commander, USAICE IG, and DAIG specifying numerous allegations that included trainee abuse, harassment, and discrimination; violation of Army regulations with respect to the use of tobacco products during IET; improper referral to an MEB and for a mental health evaluation; and invalid NJP proceedings against him that resulted in an untimely reduction in grade and debt.  However, he provides no evidence that any of his allegations were substantiated by the various offices/agencies that investigated his claims.

7.  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 set aside.  Therefore, 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.

8.  As a result of the aforementioned conclusions, there is no basis to grant the 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 application 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)                                         AR20140001366



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ABCMR Record of Proceedings (cont)                                         AR20140001366



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