IN THE CASE OF:	  

		BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20140001649 


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 the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 23 February 2012, from his Army Military Human Resource Record (AMHRR) 
* cancellation of the recoupment action of his Foreign Language Proficiency Pay (FLPP) and payment for the months it was stopped
* removal of the non-concurrence statements from his DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 2 September 2011 through 3 March 2012
* restoration of his rank/grade to sergeant (SGT)/E-5 and placement on the staff sergeant (SSG)/E-6 promotion list in the Illinois Army National Guard (ILARNG) 
* reconsideration of his End of Tour (EOT) award (Army Commendation Medal) and award of the originally recommended award of the Bronze Star Medal

2.  The applicant states:

	a.  During his tenure with the Bilateral Embedded Support Team (BEST) A8 as an Operations NCO at Forward Operating Base (FOB) Warrior, in Ghazni, Afghanistan, he received multiple actions and/or forms of punishment(s) that stemmed during his entire tenure with the team which includes pre-deployment, deployment, and post-deployment.  These discrepancies lie in the FLPP, Basic Allowance for Housing (BAH), and Cost of Living Allowance (COLA), EOT award, Developmental Counseling, Nonjudicial Punishment (NJP), and NCOER.

	b.  FLPP: Task Force (TF) White Eagle is a Polish-controlled Area of Operations.  He used the Polish language on a daily basis and received FLPP for Polish while deployed.  During his NJP proceeding, his Senior Commander, Colonel P----e, stated that he was not to receive FLPP for Polish and he was to return all of his FLPP.  This is unfair because not only was he qualified and approved by Finance to receive FLPP, another service member on BEST A9 received FLPP for Polish.  Either both of them are entitled to this pay or neither one is as neither the mission nor DMD [Department for Mission and Development] changed.  Furthermore, his entire chain of command including COL P----e utilized him as an interpreter as reflected on his NCOERs ending on 20110831 and 20120303.

	c.  BAH and COLA: Before and during his deployment, his Home of Record (HOR) has always been Minooka, IL.  He owned and lived there until after his deployment.  His wife was pregnant and gave birth to his child while spending most of her time in their second residence in Springfield, IL.  He was told by the S-1 that he must change his HOR to the Springfield location.  When he checked with Finance, he was told that legally no one can tell him where to live and his HOR was fine as is.  He related this finding to his chain of command and Battle Team superior, Major B---t, and he said that what Finance said was fine and to leave his HOR as is.  Again, he owned both homes and neither rented, leased, nor sold either until late in the deployment.

	d.  Developmental Counseling: On 29 January 2012, he received a Developmental Counseling not recommending him for promotion to SSG by COL P----e.  One of the primary reasons is because he did not correct his HOR to Springfield, IL.  His family being located in another state and not at either location was ignored by COL P----e.  

	e.  NJP: On 2 March 2012, he received an Article 15 that resulted in his reduction from SGT/E-5 to specialist (SPC)/E-4, repayment of all FLPP, BAH, and COLA by his Senior Commander, COL P----e.  He was represented by Chief Warrant Officer Three (CW3) T---n who stated that he (the applicant) should receive the FLPP, the BAH and COLA, and the collection was an administrative error.  His stay-at-home wife and new-born child were in neither locations of Minooka, IL, nor Springfield, IL, but with his family in Texas during the time he received the NJP and this was ignored.  He was told by COL P----e that as an NCO he should have known better and he will not receive FLPP which he is to repay.  This unfair and unjust severe punishment caused severe financial strife and damaged his fine career with the ILARNG.
	f.  Award: At the end of the deployment, his Officer in Charge, MAJ B---t, submitted him for award of the Bronze Star Medal.  Because of COL P----e's unfavorable perception of him, he in turn recommended a downgrade of the award to an Army Commendation Medal.  This is highly unorthodox because COL P----e only reflected his award based on one situation that did not have anything to do with his performance as an Operations NCO in a hostile environment.

	g.  NCOER: His NCOER statements by the Senior Rater and Reviewer were a reflection of only his NJP and did not reflect all accomplishments or consider all duties and responsibilities performed during this time period as an Operations NCO.  This is also unorthodox due to the fact that these individuals did not see his performance because of his location on another FOB.

	h.  Based on these discrepancies, he requests the Board overturn the NJP (Article 15) and remove it from his record, cancel the FLPP debt and payment for the months it was stopped for, remove the statements of the Senior Rater and Reviewer from his NCOER, restore the original effective date and date of rank of SGT, and place him on the SSG promotion list.  Lastly, he would like his award reconsidered for awarding of the originally-recommended award, the Bronze Star Medal.

3.  The applicant provides:

* Memorandum from the ILARNG Office of the Inspector General
* DD Form 214 (Certificate of Release or Discharge from Active Duty)  
* DD Form 215 (Correction to DD Form 214)
* NCOER for the rating period 20101101-20110831
* NCOER for the rating period 20110902-20120303 (contested NCOER) with statements of non-concurrence
* DA Form 330 (Language Proficiency Questionnaire)
* DA Form 638 (Recommendation for Award)
* Multiple statements of support and/or character reference letters 

CONSIDERATION OF EVIDENCE:

1.  The applicant's request in relation to several of the issues raised in his application is premature.  Paragraph 2-5, Section II, Army Regulation 15-185 (Army Board for Correction of Military records (ABCMR)), the regulation under which this Board operates, states that the Board will not consider any application if it determines that a member has not exhausted all administrative remedies available to him/her.  The below issues will not be discussed further in this Record of Proceedings: 
	a.  NCOER:  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army’s ERS.  Chapter 4 provides for the Evaluation Report Redress Program.  Substantive appeals for ARNG enlisted Soldiers will be submitted within 3 years of an NCOER "THRU" date to the Chief, National Guard Bureau (ARNG–HRH), Evaluation Appeals, 1411 Jefferson Davis Highway, Arlington, VA 22202–3229, for processing.  The applicant has not submitted his appeal to the appropriate authority and, therefore, has not exhausted his administrative remedy. 

	b.  Award:  Army Regulation 600-8-22 (Military Awards) prescribes Army policy, criteria, and administrative instructions concerning individual and unit military awards.  Paragraph 1-16 states a request for reconsideration or the appeal of a disapproved or downgraded award recommendation must be placed in official channels within 1 year from the date of the awarding authority’s decision.  One time reconsideration by the award approval authority will be conclusive.  However, pursuant to Title 10, U.S. Code, section 1130, a member of Congress can request a review of a proposal for the award or presentation of a decoration (or the upgrading of a decoration) that is not authorized to be presented or awarded due to time limitations established by law or policy for timely submission of a  recommendation.  Such request is submitted to the Commander, U.S. Army Human Resources Command, Fort Knox, KY.  The applicant has not submitted his appeal to the appropriate authority and, therefore, has not exhausted his administrative remedy. 

	c.  FLPP, BAH, and COLA:  Pay issues for an active member of the ARNG are addressed through the chain of command to the servicing finance office.  If and when a debt is initiated against a member, generally, the member may resolve it through his chain of command.  In some instances, a request for an exception to policy to waive the debt or stop a recoupment action is submitted by the member to the State Joint Force Headquarters, and/or the National Guard Bureau.  The applicant has not addressed his pay issue with the appropriate authority and therefore, has not exhausted his administrative remedy.

2.  Having had prior service in the Regular Army, the applicant enlisted in the ILARNG on 18 November 2007 and he held military occupational specialties 42A (Human Resources Specialist) and 13F (Fire Support Specialist).  Item 3 (HOR) of his DD Form 4 (Enlistment/Reenlistment Document) listed his HOR as "Minooka, IL, 60447." 

3.  He served through multiple extensions in a variety of stateside or overseas assignments and he was promoted to SGT/E-5 on 20 July 2009.  

4.  He was ordered to active duty in an Active Guard Reserve (Title 32) status and entered active duty on 27 October 2008.  He was assigned to the Joint Force Headquarters, ILARNG.  He was honorably released from active duty on 19 June 2011.

5.  He was ordered to active duty on 20 June 2011 in support of Operation Enduring Freedom.  The mobilization orders listed his HOR as "Minooka, IL."  He subsequently served in Afghanistan from 5 September 2011 to 27 April 2012.  He was assigned to BEST A8, TF Maverick, FOB Ghazni, Afghanistan.  

6.  On 23 February 2012, he accepted NJP under the provisions of Article 15, UCMJ, for stealing BAH benefits between 2 April 2011 and 2 February 2012 and stealing COLA benefits between 2 April 2011 and 2 February 2012.  The Article 15 shows: 

	a.  He had been afforded the opportunity to consult with counsel and he indicated he did not demand trial by a court-martial and elected a closed Article 15 hearing.  He further requested someone to speak in his behalf and that he would present matters in defense in person.

	b.  His punishment, as indicated on the DA Form 2727, consisted of a reduction to SPC/E-4.  The imposing commander directed the original DA Form 2627 be filed in the restricted folder of his AMHRR.

7.  On 2 March 2012, the applicant initialed the block indicating he wished to appeal and submit additional matters.  He placed his signature in item 7 (Initial appropriate block, date, and sign).

8.  On 13 March 2012, a military attorney reviewed the proceedings for legal sufficiency and found them to have been conducted in accordance with law and regulation and that the punishment imposed was not unjust or disproportionate to the offense committed.

9.  On 14 March 2011, after reviewing all matters presented in appeal, the next higher commander denied the applicant's appeal.  The applicant did not place his signature in item 9 (I have seen the action taken on my appeal).  

10.  On 21 March 2012, the ILARNG published Orders 081-063 reducing him to E-4 effective 3 March 2012.  

11.  On 7 October 2013, the ILARNG Office of the Inspector General informed the applicant that a thorough inquiry into his complaint concerning due process of the NJP process determined that the command followed the correct procedures for administering the NJP.

12.  There is no indication in his records that shows since his reduction he had reappeared before a promotion board, met the cut-off scores for his primary specialty, and/or was promoted back to E-5. 

13.  He provides multiple statements of support, character reference letters, and letters of recommendations from various officers, NCOs, and other individuals.  The authors speak highly of his leadership abilities, professionalism, technical and tactical proficiency, tremendous growth and maturity, and time management skills.  The authors all agree he is an asset to any organization. 

14.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.

	a.  Paragraph 3-6 addresses the filing of an NJP and provides, in pertinent part, that a commander's decision whether to file a record of NJP in the performance section of a Soldier's AMHRR is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.

	b.  Paragraph 3-28 describes setting aside and restorations.  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.  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 3-37c(1)(a) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the AMHRR.  The decision to file the original DA Form 2627 in the performance section or restricted section of the AMHRR will be made by the imposing commander at the time punishment is imposed.  The filing decision of the imposing commander is subject to review by superior authority. 

	d.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the AMHRR.  It states that applications for removal of an Article 15 from the AMHRR based on an error or injustice will be made to the ABCMR.  It further indicates there must sufficient evidence to support the removal of the DA Form 2627 from a Soldier's record by the ABCMR.

15.  Army Regulation 600-8-104 (AMHRR Management) provides policies, operating tasks, and steps governing the AMHRR.  The list of documents authorized for filing in the AMHRR, as maintained by the U.S. Army Human Resources command (HRC), states Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by the imposing commander in the appropriate block of the DA Form 2627.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offenses in question during an Article 15 hearing after considering all the evidence submitted by the applicant.  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 offenses.  The evidence of record confirms he waived his right to a trial by court-martial and opted for an Article 15 hearing.

2.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15, UCMJ.  This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  The applicant was provided a defense attorney, 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.  The applicant appealed this Article 15 to the next higher commander; however, his appeal was denied.  Additionally, a military attorney reviewed the proceedings for legal sufficiency and indicated the punishment imposed was not unjust or disproportionate to the offense committed.  The imposing commander directed filing the Article 15 in the restricted folder of his AMHRR.  This is where the subject Article 15 is currently filed.

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents are properly filed in the performance section of his AMHRR as directed by the imposing commander.  There is insufficient evidence of record and he provides insufficient evidence to show the DA Form 2627 is untrue or unjust.  

4.  The applicant does not provide any convincing evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings.  The argument he now presents is not sufficient to change the determination of guilt made by the imposing commander at the time.  His dissatisfaction with the outcome of this Article 15 does not invalidate it.  He violated the UCMJ and he was punished for it.  There is neither an error nor an injustice and there is no reason to remove it from his records.  

5.  The resulting punishment of his Article 15 was a reduction to E-4.  There is no indication in his records that shows that since his reduction he had reappeared before a promotion board, met the cut-off scores for his specialty, and/or was promoted back to E-5.  He does not qualify for a recommendation to be placed on the E-6 promotion list because he has not been promoted to E-5 yet.  

6.  The Article 15 is properly filed in his AMHRR.  The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed unless directed by an appropriate authority.  The applicant has not demonstrated the NJP action was unjust or untrue, that this NJP should be removed, or that a removal would be in the best interest of the Army.


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)                                         AR20140001649





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ABCMR Record of Proceedings (cont)                                         AR20140001649



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