IN THE CASE OF:  	  

		BOARD DATE:  17 December 2014	  

		DOCKET NUMBER:  AR20140003940 


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 that his Article 15, dated 3 March 2011, be set aside or modified and his rank/grade to sergeant first class (SFC)/E-7, be restored so he may receive retired pay as an SFC, the highest grade he held.

2.  The applicant states:

	a.  He was honorably retired and discharged from the New Mexico Army National Guard (NMARNG), effective 1 March 2012, in the rank/grade of staff sergeant (SSG)/E-6.  He had over 24 years of service, of which over 19 years were in the ARNG, and over 16 years were served on active duty in an Active Guard Reserve (AGR) status. 

	b.  While serving as an AGR, he held the rank of SFC from 15 January 2004 to 24 September 2008.  He was subsequently reduced to SSG for administrative reasons.  On 30 June 2009, he was promoted to SFC and then he was reduced to SSG for misconduct by way of an Article 15 effective 3 March 2011.

	c.  He requests his highest grade be reinstated or he be allowed to retire as an E-7 for pay purposes.  He has exhausted his chain of command to appeal the excessive punishment imposed on him by the Article 15.  He would like his reduction in grade changed to forfeiture of pay.  He wanted to discuss this request with Brigadier General (BG) M______, the highest member of his chain of command at the time.  He believes BG M______ had some influence in provoking Colonel (COL) A_________ to impose excessive punishment due to his personal prejudice.  However, he was never given the opportunity to meet with BG M______.  

	d.  On 3 March 2011 during his Article 15 hearing, the imposing commander, COL A_________, stated that he (the applicant) had been a drunk all his military career and, therefore, he was reducing him one grade.  Prior to this statement, he referenced when he (the COL) had been the battalion administrative officer in 1996 and could smell alcohol on him while at work.  However, he was actually mistaking him for another senior noncommissioned officer (NCO) that many people knew of his drinking problem to include his smelling of alcohol during duty hours.  [Back then] he (the applicant) had just transferred to the battalion after completing a 30-day inpatient treatment for alcohol and attended outpatient treatment for 1 year.  He was sober throughout COL A_________'s tour, and there are two retired AGRs who can attest to this.

	e.  On 3 March 2011 during his Article 15 hearing and after the statement, he looked at this battalion commander, Lieutenant Colonel (LTC) R_________, and he gestured to him with a "no" by nodding his head to indicate to him not to make a comment.  Had the statement made by COL A_________ and gesture made by LTC R_________ occurred prior to his competing the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), he would not have checked in block 3b (Having been afforded the opportunity to consult with counsel, my decisions are as follows:) that he did not demand trial by court-martial, that he requested the hearing be closed, that he did not request a person to speak on his own behave, and that he did not present matters in his defense.  He also would not have initialed block 7a (I do not appeal) of this form. He would have immediately refused to sign the DA Form 2627 and obtained counsel. 

	f.  Other facts that supports the punishment he received was excessive is that during BG M______’s term as The Adjutant General (TAG), NMARNG, five AGRs with alcohol-related incidents received no reduction action and no military punishment.  Two SSGs were convicted of driving under the influence (DUI) in civilian court and received no military punishment.  They are both serving on active duty as SSGs, and one had a close relationship to BG M______.  Another SFC received an Article 15 for embezzlement of funds and was reduced.  While pending retirement, he was reinstated to SFC and was retired/discharged as a SFC.

	g.  Another SFC was not retained due to scrutiny of his security clearance involving alcohol abuse and was known to have a serious alcohol problem.  He was released from the AGR program but a few years later he was reinstated by BG M______ and retired as an SFC, despite not being able to hold a security clearance.  Recently, a master sergeant (MSG) was convicted of DUI in civilian court then reassigned from recruiting duty with no further military action.  A full time ARNG technician, the brother of an LTC with a close relationship to BG M______, was retired from the ARNG based on medical conditions due to alcohol abuse.  He (the applicant) processed his retirement packet but the technician was under the influence at the time and not capable of acknowledging his paperwork was being processed.  No disciplinary action was taken against him despite his being reported for showing up either intoxicated or smelling of alcohol.

	h.  When he (the applicant) was the battalion S-1 NCO in charge (NCOIC), he handled two DUI cases, and both Soldiers were reduced.  One was an NCO who was reduced to specialist (SPC), both were convicted in civilian court, and both received punishment through Article 15s.  He recalls that the following year he saw the SPC's name on the promotion list to E-5 and he was subsequently promoted.

	i.  He submitted an Inspector General (IG) complaint directly to the National Guard Bureau (NGB) due in part to local conflict of interest.  In his IG complaint, he mentioned that a DA Form 4187 (Personnel Action) was submitted to process his reduction.  The NGB concentrated mostly on the Article 15 and found it valid.

	j.  He is grateful of the tremendous changes he has made in his life since the incident, is at peace with himself, and remains abstinent from alcohol usage.  He accepts full responsibility/accountability for his own actions that jeopardized his career and future endeavors.  He is hoping the Board will grant his request to reinstate him to SFC, the highest grade he held, for retirement purposes.

3.  The applicant provides:

* DA Form 2-1 (Personnel Qualification Record)
* three orders, dated 26 January 2004, 24 September 2008, and 16 July 2009
* three pages of email, dated 5 January 2011
* DA Form 4856 (Developmental Counseling Form), dated 3 February 2011
* DA Form 2627, dated 3 March 2011
* DA Form 4187, dated 11 May 2011
* two memoranda, dated 19 July 2011 and 14 February 2012
* NGB Form 23B (ARNG Retirement Points History Statement), dated 22 August 2012
* DA Form 1559 (IG Action Request), dated 21 March 2013
* a letter, dated 10 April 2013
* four pages of Army Regulation 27-10 (Military Justice)
CONSIDERATION OF EVIDENCE:

1.  Having had prior active and Reserve service, the applicant enlisted in the NMARNG on 21 November 1992.  He was serving as an SSG in the NMARNG and he entered active duty on 15 August 1995 in the AGR program.  He was promoted to SFC on 15 January 2004.  On 24 September 2008, he was administratively reduced to SSG.  He was assigned to the 226th Military Police (MP) Battalion (BN), Farmington, NM, in military occupational specialty 42A (Human Resources Specialist).  

2.  Orders 197-019, dated 16 July 2009, issued by the Department of Military Affairs, NMARNG, Santa Fe, NM, promoted him to SFC effective 30 June 2009.

3.  On 30 December 2010, he was arrested and charged with DUI of alcohol.  On 3 February 2011, on a DA Form 4856, he was counseled by LTC R_________, the Commander, 226th MP BN, on his arrest for DUI.  The commander stated:

	a.  It was possible to separate someone with over 18 years of service and less than 20 years of service and that he would not operate a government vehicle.  The command was researching inpatient alcohol treatment facilities and he would direct him to attend one once finalized.  He (the applicant) would have 20 years of active Federal service in February 2012 and he had told his company commander that he would submit a retirement packet for that month.  

	b.  He was expected to have no more misconduct as they didn't want to process him for separation.  His company commander knew he was not to operate a vehicle and he (LTC R_________) and the company commander would continue to look for the proper inpatient rehabilitation program for him; long term was 2 months. 

4.  The applicant checked the block of this DA Form 4856 to indicate he agreed with the counseling.  He authenticated this form by placing his signature in the appropriate block on 3 February 2011.  

5.  On 3 February 2011, he was informed he was being considered for nonjudicial punishment (NJP), under the provisions of Article 15, UCMJ, for being arrested for DUI on 30 December 2010 (emphasis added).

6.  The DA Form 2627 shows that after consulting with legal counsel the applicant declined a trial by court-martial, requested a closed hearing, did not request a person speak on his behalf, and did not present matters in his defense or mitigation.

7.  On 3 March 2011, the imposing commander, COL A_________, the Commander, 93rd Brigade, Santa Fe, NM, after considering all matters imposed the NJP directing the applicant be reduced by one rank [to SSG] and receive 45 days of extra duty.  The applicant was advised of the right to appeal the Article 15 within 5 calendar days and that an appeal after that time may be rejected as untimely.  He checked the block on the DA Form 2627 to show he chose not to appeal the Article 15 and authenticated the form by placing his signature in the appropriate block on 3 March 2011.

8.  He was subsequently reduced to SSG effective 3 March 2011.  His record is void of orders showing the reduction from SFC to SSG.

9.  He provides a DA Form 4187, dated 11 May 2011, wherein it stated, due to Record of Proceedings under Article 15, Soldier is to be reduced; grade change from SFC/E-7 to SSG/E-6 effective 3 March 2011, authority Army Regulation 600-8-19, chapter 10, paragraph 10-12b.  The recommend approval block is checked and the form is signed by COL A_________.  This DA Form 4187 is not filed in his records.

10.  He provides a memorandum from himself, dated 19 July 2011, to the NMARNG Human Resource Office, Santa Fe, NM, wherein he requested an immediate transfer from the 226th MP BN.  He stated, in part, in March 2011 he was notified he was no longer to perform any personnel functions and to only advise and tutor a non-MOS qualified SSG on S-1 operations.  Upon completing a 30-day program, he returned to duty on 5 July 2011 and was informed he was not to advise any personnel in the BN on any personnel actions.  He submitted his application for retirement with a projected retirement date of 1 March 2012.  It does not appear his request for a transfer was approved.

11.  He provides a memorandum from himself, dated 14 February 2012, to BG M______, TAG, NMARNG, wherein he requested an amendment to the Article 15 he received on 3 March 2011.  He stated, in part:

	a.  He wanted to be reinstated to SFC with a date of rank (DOR) of 30 June 2009 and the NJP punishment imposed be changed from reduction to SSG to forfeiture of pay.  The proposed reinstatement to SFC with a DOR of 30 June 2009 was to satisfy the service remaining obligation of his promotion to SFC and to retire at the highest grade held.  He requested that either 6 months pay be withheld from him effective 3 March 2011 and he receive SFC pay effective 4 September 2011, or 9 months pay be withheld from him effective 3 March 2011 and he receive SFC pay effective 4 December 2011.

	b.  His civilian criminal offense outcome had financially hampered his family and their future standing.  Retirement pay as an E-7 would satisfy some necessities needed to support his family.  He was uncertain of future employment because of his conviction and was waiting for the final outcome of the conviction to determine moving his family.  As an NCO, he did hold himself accountable and was fully responsible for his own actions; he regretted the major mistake he incurred while consuming alcohol.   

12.  He was honorably retired from active duty on 29 February 2012 in the rank of SSG under the provisions of Army Regulation 635-200, chapter 12, by reason of sufficient service for retirement and transferred to the U.S. Army Reserve Control Group (Retired Reserve).  He was placed on the Retired List on 1 March 2012.  

13.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service shows he completed 16 years, 6 months, and 16 days of net active service during this period of service and 20 years, 1 month, and 16 days of total active duty service.

14.  The applicant provides a DA Form 1559, dated 21 March 2013, he submitted to the NGB IG wherein he requested he be reinstated to SFC and retired as an E-7, the highest grade he held.  In his request, he stated, in part:

	a.  He was discharged from the NMARNG and retired in the rank of SSG on 1 March 2012.  He had been serving in the AGR program and held the rank of SFC from 15 January 2004 to 24 September 2008 when he was reduced for administrative reasons.  He was also reduced for misconduct on 3 March 2011 and believed he met the criteria to retire at the highest grade he held.

	b.  He had requested BG M_____ change to or amend the NJP imposed on him from the Article 15.  To avoid the complexity of the authority line used on the DA Form 4187, he suggested a half-month's reduced pay in lieu of reduction. DA Form 4187, section IV, line 4, authority, paragraph 10-3 refers to rules for reduction and paragraph 10-12b refers to instructions for filling out the DA Form 4187 when an Article 15 for reduction is accomplished.

	c.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-3h states "Soldiers in grades of SFC may not be reduced under this provision."  Therefore, he believed the authority for the reduction was erroneous and the DA Form 4187 is void.  It seems the effort to locate the proper authority to reduce a senior NCO were "scrambled" to produce the DA Form 4187 used to reduce him from SFC to SSG.

	d.  He held the grade of SFC for over 4 years and was reduced for administrative reasons.  To retire at the highest grade held, one must have met sufficient time in grade, and if reduced, had to have been for other than misconduct.  He believed he met the criteria to retire at the highest grade he held.

15.  In a response to the applicant, dated 10 April 2013, the NGB IG stated their office conducted an inquiry and determined his reduction to SSG was the result of an Article 15 he received for misconduct.  The DA Form 2627 stated he was reduced by one grade and given 45 days extra duty.  He did not appeal the Article 15 and any concerns he had regarding the reduction should have been brought up prior to signing the form.  He made a reference to Army Regulation 600-8-19, paragraph 10-3h and believed the authority for the reduction was erroneous.  However, he failed to reference Army Regulation 27-10 (Military Justice), chapter 3, section IV, and paragraph 3-19.  Although he provided a letter to the TAG, NMARNG, his reduction action was not reversed.  Therefore, his only redress was to request resolution through the Army Board for Correction of Military Records. 

16.  In the processing of this case, an advisory opinion was obtained from the Deputy, Personnel Policy Division, NGB.  The advisory official recommended disapproval of the applicant's request and opined that:

	a.  The applicant's State, NMARNG, reduced him twice to the rank/grade of SSG/E-6.  On 15 January 2004, he was promoted to SFC/E-7 and, on 24 September 2008, he was administratively reduced to SSG/E-6.

	b.  On 30 June 2009, he was promoted back to SFC/E-7 and, on 3 March 2011, he was reduced to SSG/E-6 as a result of Article 15 proceedings. 

	c.  He served 4 years, 8 months, and 9 days in the rank of SFC from 15 January 2004 to 24 September 2008.  Army Regulation 600-8-19, paragraph 7-14e states, concurrent with separation from the ARNG and transfer to the Retired Reserve or placement on the Retired List, Soldiers will be promoted to the highest enlisted grade satisfactory held, provided they were not reduced for misconduct or inefficiency.  

	d.  In accordance with Army Regulation 27-10, paragraph 3-19(6)(b), "When a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade which reduced is the date the punishment of reduction was imposed."  The applicant's Article 15 was a result of his civil conviction [i.e., arrest by civil authorities for DUI] and is covered by Army Regulation 600-8-19, chapter 10, table 10-2.
	e.  According to the DA Form 2627, dated 3 March 2011, the applicant initialed block 3b(3) of the form which stated he did not want to present any matters in defense, mitigation, or extenuation on his behave.  He also chose not to appeal the Article 15.

17.  In a response to the advisory opinion, dated 24 October 2014, the applicant, in part, stated:

	a.  He was aware of retirement at the highest held criteria, but not aware it had to be concurrent with discharge and transfer to the Retired Reserve.  In a memorandum to BG M______ dated 14 February 2012, he requested the Article 15 be changed or amended.  His key points were that changing the reduction to the forfeiture of pay would satisfy his time in grade for SFC requirement to retire at the highest grade held; [changing his records to show] he chose to retire via submission of a retirement packet prior to the reduction; and a suggestion of the forfeiture of pay duration; and for BG M_______ to review and reconsider the reduction.

	b.  When he wrote the memorandum, he calculated his time in grade (TIG) for pay grade E-7. He realized that by the time he was discharged on 29 February 2012 he would not have met the required 24 months military service obligation he incurred from his promotion to SFC on 30 June 2009.  By changing the reduction to a number of months of forfeiture of pay, he would have been able to retire as a SFC.

	c.  The advisory opinion stated his reduction was the result of his civil conviction.  However, he was not convicted by civil authorities until 5 March 2012, after his placement on the Retired List on 1 March 2012.  At the time of the Article 15, he was only charged with DUI and waiting the final conviction in civil court.  Army Regulation 600-8-19, chapter 10, table 10-2 and table 10-3 is only applicable if he was convicted by a civil court while serving on active duty.  

   d.  Army Regulation 600-8-19, paragraph 10-3h, states, "For Article 15, UCMJ, see Army Regulation 27-10, Soldiers in the grades of SFC through Command Sergeant Major (CSM) may not be reduced under this provision.  The key points he made to the NGB IG was that he wanted to meet with BG BG M_______ to discuss his changing/amending the grade reduction and the improper use of DA Form 4187 used to reduce him.

18.  Army Regulation 600-8-19, chapter 7, Enlisted Promotion and Reduction of ARNG Personnel, prescribes policies, procedures, and systems to advance, promote, laterally appoint, and administrative reduction of all ARNG enlisted Soldiers.  It states, in part, this chapter will be used in concert with National Guard Regulations for AGR Soldiers.  The State AG is the convening and promotion authority for all promotion boards to SGT through SGM.  They may delegate this authority to subordinate CDRs in command positions authorized grade of COL or higher for promotion to SFC through SGM. 

19.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  It states NJP is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct.  Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constituted punishment.  Included among nonpunitive measures are counseling, administrative reduction in grade, and administrative reprimands.  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.

20.  Paragraph 3-19b(6)a (Reduction in Grade) of this regulation states the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander.  For the purposes of this regulation, the imposing commander or any subordinate commander has “promotion authority” within the meaning of Article 15, UCMJ, if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade under Army Regulation 600–8–19.

21.  Paragraph 3-28 of this regulation describes the setting side and restoration actions.  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.  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."  Clear injustice means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.

22.  Army Regulation 635-200, chapter 12, sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (active Army, ARNG and USAR) who are retiring in an enlisted status.  Retirement normally will be in the grade the Soldier holds on the date of retirement.  As an exception, ARNG and USAR Soldiers serving on active duty at the time of retirement in a grade lower than their highest enlisted grade in which they served satisfactorily, who were administratively reduced in grade not as a result of their own misconduct, will retire at the highest enlisted grade in which they served.

DISCUSSION AND CONCLUSIONS:

1.  Although the advisory official stated the applicant received an Article 15 for a civil conviction, the evidence of record confirms the applicant, a senior NCO, was arrested for DUI and this was the reason for the Article 15.  The commander administering the Article 15 proceedings determined he had committed the offense in question during an Article 15 hearing after considering the evidence.  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 offense.  He was afforded the opportunity to present any mitigating issues at that time.  The punishment imposed was reduction to SSG and 45 days of extra duty.

2.  The ABCMR does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ.  This is the imposing commander's function and it will not be upset by the ABCMR unless evidence exists which demonstrates error or injustice to a degree justifying removal of the Article 15.  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.  In addition, he was advised that he had 5 calendar days to submit an appeal and after that time an appeal may be rejected as untimely.  He declined to do so.  

3.  Notwithstanding his contention that his punishment was too harsh and other members of the ARNG received lesser punishment for the same offense, he provides no evidence that supports his contention.  In addition, he contends his reduction was administratively processed incorrectly.

4.  Regardless, he acknowledged he violated the UCMJ and he was accordingly punished.  His punishment included a reduction of one grade and his reduction was valid.  He did not provide convincing evidence that shows the Article 15 is untrue or inaccurate, or the reduction in rank was improper, too harsh, or unjust.  His dissatisfaction with the outcome of the Article 15 and a possible administrative error processing the NJP imposed does not invalidate the Article 15.  There is neither an error nor an injustice and there is no reason to set the Article 15 aside or restore his rank.

5.  He was honorably retired on 29 February 2012 while serving on active duty under the provisions of Army Regulation 635-200, chapter 12, by reason of sufficient service for retirement.  In accordance with applicable regulations and laws, he was appropriately placed on the Retired List on 1 March 2012 in the rank/grade of SSG/E-6, the rank/grade he held at the time of retirement and the highest grade he had satisfactorily served in.  

6.  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.



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