IN THE CASE OF:	  

		BOARD DATE:	  14 May 2014

		DOCKET NUMBER:  AR20140005931 


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 reconsideration of his previous request for removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 1 March 2012, from his Army Military Human Resource Record (AMHRR). 

2.  The applicant states based on the results of the Commander's Inquiry in the dismissal of the Article 15 there is a "Clear Injustice" documented on a DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) signed by his Battalion Commander on 24 January 2013.  This was the original reason submitted under Army Board for Correction of Military Records (ABCMR) Docket Number AR20130002732, dated 12 September 2013, which was denied.  This is stated in the addendum or memoranda completed by LTC KAL and LTC DDL.  The assumption of command orders state they were the Battalion Commanders at the time of their acts or rulings in his case.

3.  The applicant provides: 

* DA Form 2627, dated 1 March 2012 (previously submitted)
* Appointing as Fact-Finding Officer (previously submitted)
* Fact finding Officer Regarding Negligence in 583rd MLC Warehouse During Deployment (previously submitted) 
* Appeal of Imposition of Non-Judicial Punishment (NJP), dated 4 December 2012 (previously submitted))
* LTC DDL response to Appeal of Imposition of NJP, dated 3 January 2013 (previously submitted)
* DA Form 2627-2 (Mitigation), dated 23 January 2013 (previously submitted)
* DA Form 2627-2 (Setting aside), dated 24 January 2013 (previously submitted)
* ABCMR Docket AR20130002732, dated 12 September 2013 
* Assumption of Command memoranda for LTC KAL and LTC DDL (previously submitted)
* LTC KAL memorandum, dated 13 March 2014, explaining unusual circumstances
* LTC DDL memorandum, dated 21 March 2014, explaining unusual circumstances

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130002732, on 12 September 2013. 

2.  The applicant provides two memoranda from his battalion commanders explaining the unusual circumstances that led to the mitigation/set aside of the punishment beyond the regulatory 4 months required by Army Regulation 27-10 (Military Justice).  This is considered new evidence and warrants consideration by the Board. 

3.  For the purpose of clarity, the ABCMR staff lists the key players in this case: 

* Captain (CPT) AMG, Company Commander, 583rd Medical Logistics Company (MLC), Kandahar, Afghanistan
* Lieutenant Colonel (LTC) SAH, identified as 463rd Medical Detachment (Veterinary Services)
* LTC KAL, Commander, 61st Multifunctional Medical Battalion, Fort Hood, TX (as of 20 October 2010)
* LTC DDL, Commander, 61st Multifunctional Medical Battalion, Fort Hood, TX (as of 16 November 2012)
* the 583rd MLC provides support to Area Support Medical Companies, optical units, Combat Support Hospital, and a blood detachment, all within the 61st Multifunctional Medical Battalion, 1st Medical Brigade 

4.  Having had prior service, the applicant enlisted in the Regular Army on 27 June 2005.  He has served through multiple extensions or reenlistments and he holds military occupational specialty 68J (Medical Logistics Specialist).  

5.  He was promoted to sergeant/E-5 on 1 August 2006 and to staff sergeant (SSG)/E-6 on 1 January 2010.  He was assigned to the 61st Multifunctional Medical Battalion, Fort Hood, TX.  

6.  On 29 February 2012, in Kandahar, Afghanistan, having declined trial by a court-martial and opting for a closed hearing, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for: 

* dereliction of duty on divers occasions between 9 September and 
		30 December 2011, in that he willfully failed to properly account for stock 			in the 583rd MLC warehouse by concealing excess medical supplies in 			unauthorized locations
* dereliction of duty on divers occasions between 9 September and 
		30 December 2011, in that he willfully failed to properly account for stock 			in the 583rd MLC warehouse by failing to report stock discrepancies to the 		accountable officer

7.  The imposing officer, CPT AMG, punished him with a forfeiture of $801 pay, 14 days of extra duty (suspended until 28 August 2012), and 14 days of restriction (suspended until 28 August 2012).  The imposing officer directed the Article 15 be filed in the performance folder of the applicant's AMHRR.  The applicant's AMHRR contains a previous Article 15, dated 1 January 2009, that was ordered filed, and remains filed, in the restricted folder of his AMHRR. 

8.  On 1 March 2012, the applicant exercised his right to appeal.  However, on 6 March 2012, after a military attorney determined that the proceedings were conducted in accordance with law and regulation and that the punishment imposed was neither unjust nor disappropriate to the offense committed, the next higher commander, LTC SAH of the 463rd Medical Detachment, denied his appeal.  The applicant was so notified on 6 March 2012. 

9.  On 23 October 2012, an investigating officer (IO) was appointed by LTC KLL, Commander of the 61st Multifunctional Medical Battalion, as a fact-finding officer to investigate the facts and circumstances surrounding illegal or negligent operations in the 583rd MLC warehouse storage section while the company was deployed to Kandahar Airfield.  Specific areas included: 

* if applicant's counseling and corrective action/training were sufficient enough for an Article 15
* if applicant's referred Noncommissioned Officer Evaluation Report (NCOER) was justified
* the proximate cause of lost property
* awareness of the command of the alleged improper or negligent operations
* corrective actions taken by the command

10.  On 26 November 2012, the IO rendered his findings and determined none of the allegations were substantiated.  In the part pertaining to the Article 15, the IO stated the applicant's counseling and plan of action for corrective training was not sufficient enough for a Company Grade Article 15 based on the Commander's Inquiry conducted in Afghanistan.  The two counselings given on 9 September 2011 and 30 December 2011 during the applicant's entire stint at the warehouse did not address negligence, as stated in the Company Grade Article 15; nor did it address corrective training for negligence.  In fact, the assessment from the counseling on 9 September 2011 provided veracity that his performance was improving and were along the lines of the expectations discussed.  All evidence for the Company Grade Article 15 was gathered after the applicant's departure from the section.  The evidence used to justify the Article 15 could not be linked directly to him nor could it be linked directly to his section.  These allegations were based on assumptions and the possibility that he was negligent.

11.  On 4 December 2012, the applicant submitted an appeal of his Article 15 to the Commander, 61st Multifunctional Medical Battalion.  He requested the punishment be set aside due to lack of evidence and the improper handling of the Article 15.  He stated:

	a.. The commanders inquiry that came with the following recommendations from the IO "I did not identify a crime or anything "illegal" per se but there is cause to counsel with legal for UCMJ courses of action."  He did not think a formal investigation was necessary because he did not think enough information/evidence would be provided to the IO.  

	b.  There was no substantiating evidence that proved he was guilty of any of the following accusations.  He was never counseled quarterly, nor did any of his counseling statements refer to him being negligent and responsible for the loss of any supplies.  The findings of the commander's inquiry initiated by LTC KAL stated the two counselings given during his entire stint at the warehouse did not address negligence, as stated in the Article 15; nor did it address corrective training for negligence.   

	c.  All evidence for the Article 15 was gathered after his departure from the section.  The evidence used to justify the Article 15 could not be linked directly to him nor could it be linked directly to his section.  These allegations were based on assumptions and the possibility that he was negligent.  Lastly the findings from the IO on the commander's inquiry provided veracity into a systemic training issue throughout the entire warehouse operations during 583rd MLC deployment. The charges prompting this command inquiry could not be pinpointed to a single individual; therefore, these allegations are found unsubstantiated.

12.  On 3 January 2013, LTC DDL reviewed the applicant's appeal.  He rendered an endorsement wherein he outlined the review, statements of facts, recommended action, and reason for recommendation.  He stated that he had reviewed the applicant's appeal reference the NJP received on 1 March 2012 and other associated actions pertaining to this case.  His recommendation is to revoke the NJP, request an immediate removal of the associated documents held in his AMHRR associated with the NJP, and initiate a reimbursement of money surrendered of $801.00.  

13.  On 23 January 2013, LTC DDL signed a DA Form 2627-2 wherein he mitigated the punishment to a forfeiture of $801 pay imposed on 1 March 2012 and ordered it reimbursed. 

14.  On 24 January 2013, LTC DDL signed a second DA Form 2627-2 setting aside the punishment of forfeiture of $801 pay imposed on 1 March 2012 based on a clear injustice. 

15.  On 17 September 2013, the Board denied the applicant's request to remove the DA Form 2627 from the applicant's AMHRR.  The Board stated: 

	a.  The applicable regulation requires that an addendum be added to the DA Form 2627-2 that sets aside punishment after 4 months from the date punishment was imposed.  In the applicant’s case, 10 months had elapsed since the punishment and there is no addendum attached to the set-aside action     (DA Form 2627-2). 

	b.  It is also noted that when the applicant’s unit deployed to Afghanistan in support of the medical task force, the unit was under the operational control of another command that had UCMJ appellate authority over the applicant.  The applicant appealed his punishment to a higher authority and his appeal was denied by a LTC in command at the time.

	c.  The applicant appealed his punishment again when he returned to his home station and his battalion commander (a LTC) designated himself as a superior authority and took action to set aside the punishment.  However, it is unclear as to how the battalion commander is or was a superior authority at the time he took the action.  Therefore, it does not appear that the actions taken or the manner in which they were executed were valid and in accordance with the applicable regulations.  Accordingly, there appears to be no basis to remove the record of NJP from his official records as requested.  

16.  On 13 March 2014, LTC KAL (the former battalion commander) submitted a Memorandum for Record wherein he stated: 

	a.  He is the former Battalion Commander for the 61st Multifunctional Medical Battalion.  He initiated an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) in or around August-September 2012 into the applicant's Article 15.  He did so because he had reason to believe that serious ethical issues within the applicant's chain of command had deprived him a fair opportunity to appeal or have the Article 15 set aside in a timely manner.  After he initiated the Article 15, his successor-in-command, LTC DLD, took appropriate [action] on the results of this 15-6 by setting aside the applicant's Article 15.  Unfortunately, neither he nor the successor were advised by their legal team that Army Regulation 27-10 requires a commander setting aside an Article 15 that is more than 4 months old to attach an addendum explaining unusual circumstances that caused the delay. 

	b.  The applicant received his Article 15 while deployed under a different UCMJ authority.  Upon redeployment, he requested to utilize the open door policy to discuss with him what had happened to him in Afghanistan.  He explained how he had received an Article 15 for losing accountability of medical supplies in the warehouse, which now did not allow him to reenlist.  He (the battalion commander) was familiar with the previous unit’s issues and investigation prior to the applicant's unit taking over the medical logistics mission in Afghanistan.  There was an AR 15-6 investigation into 591st Medical Logistics Company stock control procedures.  

	c.  The applicant's immediate supervisor and leadership also had ethical issues.  His platoon sergeant, Sergeant First Class (SFC) B----nt, received a General Officer Memorandum of Reprimand (GOMOR) for falsifying documents. His First Sergeant (SFC R---ey) and his platoon leader (First Lieutenant (1LT)   P--e) received GOMORs for gambling in Afghanistan.  All three received these GOMORs for their unethical behavior while deployed during the same time frame the applicant received his Article 15 and poor NCOER.  His (the battalion commander's) AR 15-6 IO and III Corps, Fort Hood, legal review recommended that the applicant's NCOER and Article 15 be appealed, even though the Article 15 had gone through the appeals process in Afghanistan.  The appeal went to a LTC/O-5 detachment commander, but not a battalion-level commander for review.  

	d.  All of these circumstances prohibited the applicant from having any meaningful opportunity to appeal or set aside the Article 15 before he returned to his chain of command, but he found it clearly in the interests of justice to afford him the opportunity to do so. 

17.  On 21 March 2014, LTC DLD rendered a memorandum to this Board, subject:  AR 15-6 Investigation into the Circumstances Surrounding the Article 15 and NCOER for [Applicant] that Constitutes Unusual Circumstances.  He states that he has read the enclosed memorandum by LTC KLL.  He agrees with its contents, and the facts it sets forth are true and correct to the best of his knowledge.   On or about October 2012, LTC KLK initiated an AR 15-6 investigation into the events that led to an Article 15 for the applicant.  As LTC KLL's successor-in-command, he was responsible for taking appropriate action on the results of the 15-6 investigation.  Based on the results of the investigation, he set aside the applicant's Article 15 on 24 January 2013.  Unfortunately, his legal team did not inform him that because he set the Article 15 aside more than 4 months after it took place, Army Regulation 27-10, paragraph 3-28d required him to accompany the DA form 2627-2 with an addendum explaining the unusual circumstances that justified the delay.  Had he known that was a requirement, he would have laid out the facts as they appear in LTC KLL's enclosed memorandum.  Accordingly, he submits this memorandum, incorporating by reference all of the facts set forth in LTC KLL's enclosed memorandum, as the required addendum explaining why unusual circumstances justified the setting aside of the applicant's Article 15 more than 4 months after it took place.  He hopes this corrects any previous error.

18.  Army Regulation 27-10 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 3-6b states if a record of NJP has been designated for filing in a Soldier’s restricted folder, the Soldier’s AMHRR will be reviewed to determine if the restricted folder contains a previous record of NJP.  In those cases in which a previous DA Form 2627, which has not been wholly set aside, has been filed in the restricted folder and in which prior to that punishment, the Soldier was in the grade of SGT or higher, the present DA Form 2627 will be filed in the performance section.  The filing should be recorded on the present DA Form 2627 and the Soldier concerned and the imposing commander will be informed of the filing of the DA Form 2627 in the performance folder. 

	b.  Paragraph 3-23b states a successor-in-command is the officer who has authority to impose the same kind and amount of punishment on a Soldier concerned that was initially imposed or was the result of a modification and who commands the unit to which the punished Soldier is currently assigned or attached, is the commander succeeding to the command occupied by the imposing commander, provided the Soldier still is of that command, or is the successor to the delegate who imposed the punishment, provided the same authority has been delegated under paragraph 3–7c, to that successor and the Soldier is still of that command.

	c.  Paragraph 3-26 states mitigation is a reduction in either the quantity or quality of a punishment, for example, a punishment of correctional custody for 
20 days reduced to 10 days or to restriction for 20 days.  The general nature of the punishment remains the same.  The first action lessens the quantity and the second lessens the quality, with both mitigated punishments remaining of the same general nature as correctional custody, that is, deprivation of liberty. However, a mitigation of 10 days of correctional custody to 14 days of restriction would not be permitted, because the quantity is increased.  A forfeiture of pay may be mitigated to a lesser forfeiture of pay.  A reduction may be mitigated to forfeiture of pay.  When mitigating reduction to forfeiture of pay, the amount of the forfeiture imposed may not be greater than the amount that could have been imposed initially, based on the restored grade, by the officer who imposed the mitigated punishment.  Although a suspended punishment may be mitigated to a punishment of a lesser quantity or quality (which is also suspended for a period not greater than the remainder of the period for which the punishment mitigated was suspended), it may not, unless the suspension is vacated, be mitigated to an unsuspended punishment.  

	d.  Paragraph 3-28a 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.  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.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.

	e.  Paragraph 3-28b states 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.

	f.  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. 

	g.  Paragraph 3-38 (Supplementary Action) is any action taken by an appropriate authority to suspend, vacate, mitigate, remit, or set aside a punishment (except punishment imposed under summarized proceedings) after action has been taken on an appeal or DA Form 2627 has been distributed. Supplementary action will be recorded on DA Form 2627–2.

	h.  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 be sufficient evidence to support the removal of the DA Form 2627 from a Soldier's record by the ABCMR.

19.  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 an 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.  Table B-1 states: 

	a.  If the Article 15 shows any of the following punishments, file only when the statement in part III says to file in the AMHRR:  (1) Extra duty or restriction for 
14 days or less, (2) Oral or written reprimand, (3) Forfeiture of pay for 1 month, or (4) Any combination of the above. 

	b.  For an Article 15 imposed on or after 25 January 1990 where filing is directed to the "Restricted" folder by item 5 of DA Form 2627, place the Article 15 in the "Performance" folder if the following conditions exist: (1) The previous Article 15 has not been wholly set aside, (2) Prior to the punishment imposed on the previous Article 15, the Soldier was an E5/SGT or higher.

	c.  Any Article 15 that has been wholly set aside will be transferred from "Performance" to "Restricted" folder if the Soldier submits a completed, approved DA Form 2627–2 to the Records Manager for Web-upload.  Upon receipt, an official will transfer the Article 15 and 2627–2 to the "Restricted" folder.  If the Article 15 was originally filed in the "Restricted" folder, the official will file the DA Form 2627–2 in the "Restricted" folder upon receipt of the Web upload.

	d.  If an Article 15 is wholly set aside on or after 1 September 1979, move it (along with DA Form 2627–2) to the "Restricted" folder upon receipt of the completed, approved DA Form 2627–2.  

	e.  Upon direction from the ABCMR or Department of the Army Suitability Evaluation Board, an Article 15 will be removed from the "Performance" folder and transferred to the "Restricted" folder.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense 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 the applicant waived his right to a trial by court-martial and opted for an Article 15 hearing.

2.  The applicant accepted the NJP on 1 March 2012.  He was found guilty of the two charges and his punishment consisted of a forfeiture of $801 pay for 1 month and 14 days of restriction and extra duty (suspended until 28 August 2012).  The imposing commander directed filing the Article 15 in the performance folder of his AMHRR.  This is where the subject Article 15 is currently filed 

3.  The applicant appealed this Article 15 to the next higher commander at the time; however, his appeal was denied.  It appears his company (the 583rd MLC) was under the operational control of the 463rd Medical Detachment.  The "Detachment Commander," identified as LTC SAH, denied his appeal.

4.  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. 

5.  Upon his return to Fort Hood, TX, the applicant complained to his battalion commander about a separate issue.  During the interview, the battalion commander became aware of the Article 15 and the NCOER issues.  The battalion commander appointed an IO as a fact-finding officer to investigate the facts and circumstances surrounding illegal or negligent operations in the 583rd MLC warehouse storage section while the company was deployed to Kandahar Airfield, including the applicant's Article 15.  The IO cleared the applicant of any wrongdoings. 

6.  As a result of the IO finding, the applicant submitted an appeal.  His appeal was reviewed by the successor-in-command battalion commander who recommended the Article 15 be revoked.  He followed that with a supplemental action on 23 January 2013 when he ordered the punishment to a forfeiture of $801 pay mitigated.  Mitigation is a reduction in either the quantity or quality of a punishment, its general nature remaining the same.  The battalion commander also provided the applicant with further relief in that, on 24 January 2013, he ordered the punishment of forfeiture of $801 pay be set aside on the basis of a clear injustice.  

7.  Unfortunately, by the time the battalion commander conducted the investigation and ordered the mitigation/setting aside, more than 4 months had elapsed and the battalion commander did not explain why his action was conducted nearly 10 months after the punishment had been imposed.  He now comes with a justification and explains the timelines and circumstances associated with the Article 15, punishment, appeal, mitigation, and setting aside. 

8.  Also unfortunately for the applicant, the battalion commander only set aside the punishment pertaining to the forfeiture of pay.  He did not set aside the punishment to restriction and extra duty, regardless whether it was suspended, executed, or unexecuted.  Setting aside means voiding the punishment or any part of it.  Here, the battalion commander voided the forfeiture of pay.  

9.  Since the Article 15 was not wholly set aside, and since the imposing officer ordered it filed in the performance folder of his AMHRR, and since his restricted folder already contains another Article 15, regretfully, the applicant 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 to amend the decision of the ABCMR set forth in Docket Number AR20130002732, on 12 September 2013. 




      ______________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)                                         AR20140005931





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ABCMR Record of Proceedings (cont)                                         AR20140005931



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