IN THE CASE OF: 

		BOARD DATE:	  2 Ju1y 2014

		DOCKET NUMBER:  AR20140006249 


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 a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice), dated 20 August 2013, from his official records and restoration to pay grade E-6 with entitlement to all back pay and allowances.

2.  The applicant defers his comments and supporting documents to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests restoration of the applicant to pay grade E-6 with entitlement to all back pay and allowances and removal of a DA Form 2627, dated 20 August 2013, from his official records.

2.  Counsel states, in effect, the applicant's promotion to pay grade E-6 was erroneously revoked for the purpose of administering nonjudicial punishment (NJP) and reducing him to the rank of specialist when there was no evidence that he had committed or intended to commit any wrongdoing.  The applicant was promoted to pay grade E-6 on 1 March 2013.  On 20 August 2013, he was notified that his promotion orders had been revoked and the revocation orders were backdated to 8 July 2013, supposedly the day the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was initiated.  There are specific requirements for removing individuals from a promotion list that afford the individual Soldier due process; however, the applicant was not afforded due process and was administratively removed from the promotion standing list.  He further states the applicant did not commit any fraud or forgery and was lawfully promoted to pay grade E-6; however, the command took unlawful action for the purpose of reducing him two grades.

3.  Counsel provides a six-page brief explaining the applicant's case.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 3 July 1996 for a period of 3 years and training as a food service specialist.  He completed his training and has remained on active duty through a series of continuous reenlistments.  He was promoted to pay grade E-5 on 1 March 2007.

2.  A review of the applicant's official records failed to show a copy of the NJP in question or the promotion and reduction orders.  Additionally, there is no copy of the Army Regulation 15-6 investigation present in the available records.

3.  However, the evidence provided by the applicant's counsel shows he was promoted to pay grade E-6 on 1 March 2013 and the orders were revoked on 8 July 2013.

4.  The screenshots of the Article 15 show that NJP was imposed against the applicant in the rank of sergeant (SGT) on 20 August 2013 for providing a DA Form 705 (Army Physical Fitness Test Card) that he knew to be false.  His punishment consisted of reduction to pay grade E-4, forfeiture of pay, extra duty, and restriction.

5.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states the promotion authority may promote when the unchallenged points equal or exceed an announced Department of the Army cutoff score.  However, when the promotion authority suspects that there may have been fraud, he or she may hold the promotion in abeyance until the issue is resolved.  Paragraph 3-24 provides that Soldiers will be immediately removed from the recommended list of promotion when he or she receives NJP, fails a record Army Physical Fitness Test, is reduced in grade, or is erroneously selected (did not meet one or more of the eligibility requirements).  Paragraph 1-17 provides that instruments (orders) announcing erroneous promotions will be revoked when a Soldier has been erroneously promoted.

6.  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 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.  Counsel's contention that NJP was unjustly imposed against the applicant for something he did not do and that his promotion to pay grade E-6 was erroneously revoked was noted and appears to lack merit.

2.  Counsel has not provided and the applicant's records do not contain the record of NJP in question or a copy of the Army Regulation 15-6 investigation conducted in his case or any other fact-finding documents used by the applicant's command at the time.  In the absence of evidence to show he was not guilty of any wrongdoing, it must be presumed that the actions taken by the command were in accordance with Army regulations with no violations of any of his rights.

3.  Counsel's contention that the applicant was improperly removed from the promotion standing list without a removal board was considered and found to lack merit.  The applicant was placed on the E-6 promotion standing list and he was no longer eligible when he was reduced to pay grade E-4 and was automatically removed.  No removal board is required for actions such as this.

4.  It is also noted that at the time NJP was being considered, the applicant had the right to demand trial by court-martial, where he could have asserted his innocence before a jury of his peers and he chose not to do so.

5.  In the absence of evidence to show otherwise, it must be presumed that the applicant's promotion to E-6 was properly revoked as a promotion obtained through fraud and NJP was properly imposed against him with no violation of any of his rights.  Accordingly, there appears to be no basis to grant his request.

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 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)                                         AR20140006249



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ABCMR Record of Proceedings (cont)                                         AR20140006249



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