BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140004609 


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 restoration of his rank to staff sergeant (SSG)/pay grade E-6 and removal of all records with the rank sergeant (SGT)/pay grade E-5 on them on or after the date of 2 February 2010.

2.  The applicant states that his right to due process was violated when his request for an appeal to a higher command did not occur.  His command at the time of the incident did not properly read him his rights and more so knowingly put off the reading of his rights.  Further, he was denied legal counsel.

3.  The applicant provides copies of his:

* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 2 February 2010
* DA Form 5109 (Request to Superior to Exercise Article 15, UCMJ, Jurisdiction), dated 24 January 2010
* two DA Forms 3881 (Rights Warning Procedure/Waiver Certificate)
* Orders 069-016, dated 10 March 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 24 June 2010

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is currently a SSG serving in the Colorado Army National Guard (COARNG).

3.  A review of his Official Military Personnel File shows the following promotion history: 

* promoted to SSG on 19 December 2007
* reduced to sergeant (SGT/E-5) on 2 February 2010
* promoted to SSG on 26 August 2014 

4.  His record OMPF is void of any UCMJ documents related to his reduction.  All documents related to his acceptance of UCMJ were provided by the applicant.  These documents include:

	a.  a DA Form 5109, dated 24 January 2010, wherein his battery commander in Iraq recommended the applicant be punished under the provisions of the UCMJ by the battalion commander for having numerous inappropriate online communications with a woman, not his wife, which caused family problems.

	b.  a DA Form 3881, which contains the applicant's name, unit, social security number, pay grade, and investigating officer's name.  This document is not signed and has a note attached that reads, "Hold Until 2nd Reading."

	c.  The second form is dated 2 February 2010 and indicates the applicant was suspected/accused of failing to obey/comply with a lawful order and regulation.  The applicant's initial are annotated next to the following statements indicating his acknowledgment of his rights:

* I do not have to answer any question or say anything.
* Anything I say or do can be used as evidence against me in a criminal trial.
* For personnel subject to the UCMJ I have the right to talk privately to a lawyer before, during, and after questioning and to have a lawyer present with me during questioning.  This lawyer can be a civilian lawyer I arrange for at no expense to the Government or a military lawyer detailed for me at no expense to me, or both.
* If I am now willing to discuss the offense(s) under investigation, with or without a lawyer present, I have a right to stop answering questions at any time, or speak privately with a lawyer before answering further, even if I sign the waiver below.
* I understand my rights as stated above.  I am willing to discuss the offense(s) under investigation and make a statement without talking to a lawyer first and without having a lawyer present with me.

This form contains signatures of one witness, the interviewee (the applicant), and the investigator.

	d.  a DA Form 2627, which shows on 26 January 2010 he was informed that he was being considered for non-judicial punishment (NJP) for:

* willfully disobeying a lawful no contact order
* making or drawing a check without sufficient funds
* violating Article 134, in that his actions were prejudicial to the good order and discipline of the Armed Forces

5.  This same DA Form 2627 shows that on 2 February 2010, he elected, as confirmed by his initials:

* not to demand a trial by court-martial
* a closed hearing
* not to have a person speak on his behalf
* not to present matters in defense, mitigation, and/or extenuation 

6.  On 2 February 2010, he accepted NJP under the provisions of Article 15 of the UCMJ for the offenses listed above.  In a closed hearing all matters presented in defense, mitigation, and or extenuation, were considered, and his punishment consisted of reduction of one grade to SGT and extra duty for 
30 days.  The original DA Form 2627 was directed for filing in his restricted fiche.

7.  Further, the applicant acknowledged with his signature that he had been advised of his right to appeal to the brigade commander within 5 calendar days. 

8.  Army Regulation 27-10 (Military Justice) defines the term setting aside and restoration. Paragraph 3-28 states 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.  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.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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 requests that he be restored to his former rank, SSG, and that all documents reflecting his rank as SGT be removed.

2.  It is the imposing commander’s function to reexamine issues of guilt or innocence under Article 15 of the UCMJ and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence.  He contends that he was denied due process, his right to appeal, and legal counsel; however, the available evidence shows the applicant acknowledged with his initials on the DA Form 2627 that he was in fact provided an opportunity to consult with a defense attorney, given the right to demand trial by court-martial, and afforded the opportunity to appeal the Article 15 through the proper channels. 

3.  The applicant did not provide evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings or that he was not read his rights.  The arguments he presents are not sufficient to change the determination of guilt made by the commander.

4.  He violated the UCMJ and he was punished for it.  There is neither an error nor an injustice and there is no reason to set the Article 15 aside or to restore his rights and privileges.

5.  Lacking evidence to the contrary, his NJP proceedings were conducted in accordance with law and regulation.  There is no evidence of an error or an injustice, as such; there is no basis for granting 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)                                         AR20140004609





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ABCMR Record of Proceedings (cont)                                         AR20140004609



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