IN THE CASE OF:  	  

		BOARD DATE:  16 October 2014	  

		DOCKET NUMBER:  AR20140001799 


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, reinstatement to an Active Guard Reserve (AGR) position and restoration of his rank/grade to staff sergeant (SSG)/E-6.

2.  The applicant states, in effect:

   a.  He was reduced from SSG to sergeant (SGT), removed from Warrant Officer Candidate (WOC) School, relieved of duty, and his security clearance was suspended for allegedly forging a Letter of Recommendation in his WOC packet.  He now owes a debt of over $5,000.00.

   b.  He believes an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation provided insufficient evidence for the action taken.  Two other Soldiers were involved in the incident.  Despite being accused of the same crimes, at the same time, by the same official, and having his appeal mirror the other Soldiers’ appeals, he was punished the hardest.

   c.  He received no form of rehabilitation or counseling of any kind.  He feels the imposing officer abused his authority and utilized undue command influence by putting fear into his subordinates and coercing his peers and seniors to agree with his decision.



3.  The applicant provides a substantial number of documents that were created throughout his career most notably pertaining to the events encompassing his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant was promoted in the Georgia Army National Guard (GAARNG) to the rank/grade of SSG/E-6 on 1 January 2007.

2.  On 10 September 2012, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:  with intent to defraud, on or about 24 October through 1 December 2011, submitting a letter of recommendation for WOC school with a forged signature in the signature block, and for behaving with disrespect toward his superior commissioned officer.  

3.  His DA Form 2627 (Record of Proceedings Under NJP) shows that, having been afforded the opportunity to consult with counsel, he did not demand a trial by court-martial, and he did not desire a spokesman to accompany him.  He did present matters in defense and/or extenuation and he requested an open hearing.  

4.  His punishment consisted of a reduction to the rank/grade of SGT/E-5.  His commander advised him of his right to appeal his punishment within 5 days of the date of imposition.  On 19 September 2012, the applicant's appeal of his NJP was denied.

5.  The applicant was reduced to the rank/grade SGT/E-5, effective 
10 September 2012.

6.  Orders 347-816, issued by the State of Georgia, Office of the Adjutant General, dated 13 December 2013, terminated the applicant from Full-Time AGR status with the GAARNG due to involuntary resignation, effective 16 March 2014, amended to 26 March 2014, and released him back to his parent ARNG unit.

7.  The applicant provides several DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), Army Regulation 15-6 Investigation Findings and Recommendations, sworn statements, and assorted documents pertaining to the events encompassing his request.

8.  During the processing of this case an advisory opinion was obtained from the Deputy, Personnel Policy Division, National Guard Bureau.  The advisory official recommended disapproval of the applicant's request and stated:

   a.  The applicant was investigated for his first offense of forging a signature on a letter of recommendation and submitting it for filing in his WOC school packet.  This offense resulted in him receiving NJP, a reduction in rank from SSG to SGT, and removal from the WO program.

   b.  The applicant was also investigated for a second offense of placing or conspiring to place a falsified NCOER in his personnel file in the Army's interactive Personnel Electronic Records Management System (iPERMS).  This offense resulted in him receiving a recommendation for removal from the AGR program because it was inappropriate professional and personal conduct in accordance with (IAW) National Guard Regulation (NGR) 600-5 (AGR Program Title 32, Full-Time National Guard Duty).

   c.  It was determined the applicant was investigated for two separate offenses, in which he was found guilty and received separate punishment for each offense.  His separation from the AGR program and reduction in rank were processed IAW the aforementioned regulations.  

9.  On 5 August 2014, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

10.  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 (MCM).  Chapter 3, of the regulation in effect at the time, implemented and amplified Article 15 of the UCMJ and Chapter XXVI of the MCM.  

   a. Paragraph 3-4 states 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.  If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken.  Prompt action is essential for NJP to have the proper corrective effect.  NJP may be imposed to correct, educate, and reform offenders who have shown they 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.

   b. Paragraph 3-20 describes the setting side of punishment and restoration or rights, privileges, or property.  This is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights 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 Article 15.  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.  

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to be reinstated into an AGR position and restoration of his rank/grade to SSG/E-6 has been carefully examined and found to lack merit.

2.  The evidence shows the applicant was investigated for forging a signature on a letter of recommendation and submitting it for filing in his WOC school packet.  This offense resulted in him receiving NJP, reduction in rank from SSG to SGT, and removal from the WO program.  

3.  The evidence of record confirms the imposing commander administering the Article 15 proceedings, during an open 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).  

4.  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.  

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 proper channels.  However, the applicant waived his right to a trial by court-martial and he opted for an open Article 15 hearing.  Subsequent to this hearing he exercised his right to appeal which was later denied. 

6.  It appears the applicant was also investigated for a second offense of placing or conspiring to place a falsified NCOER in his personnel file within the Army's IPERMS.  This offense resulted in him receiving a recommendation for removal from the AGR program because it was inappropriate professional and personal conduct IAW NGR 600-5.

7.  It appears the applicant was investigated for two separate offenses, in which he was found guilty and received separate disposition for each offense.  The applicant does not provide, and his record does not contain, insufficient evidence to show his reduction in rank and separation from the AGR program was without merit.  

8.  In view of the foregoing, he is not entitled to the 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 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)                                         AR20140001799



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ABCMR Record of Proceedings (cont)                                         AR20140001799



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