IN THE CASE OF

		BOARD DATE:	    8 July 2014

		DOCKET NUMBER:  AR20140008619 


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 that his rank/grade of staff sergeant (SSG)/E-6 be reinstated. 

2.  The applicant states, in effect, he was reduced in rank and pay grade from SSG/E-6 to specialist (SPC)/E-4.  An administrative separation board convened on 7 June 2013 and ruled in his favor that there was not a preponderance of evidence to support his separation from service.  He further states he has tried to have his rank reinstated, but has had only negative results. 

3.  The applicant provides:

* Enlisted Record Brief (ERB)
* 15 letters of support/character reference
* 2 DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ)
* 20 pages of an Administrative Separation Board Hearing

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Regular Army on 9 June 1998.  He has remained in service through a series of reenlistments, deployed to Iraq and Afghanistan, and was awarded the Bronze Star Medal with "V" Device and the Purple Heart.  He is currently serving on active duty at Fort Benning, GA, in the rank/grade of SPC/E-4.  

2.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on 28 November 2011, for violating a lawful general regulation by wrongfully pulling the hair of an officer; asking a different officer about her freckles and where they were and stating that he wanted to see her in pigtails; and telling another officer that he wanted to see her in pigtails before the class finished.   

3.  On 28 November 2011, the applicant indicated he elected not to demand a trial by court-martial, elected to have a closed hearing, and elected not to have a person speak in his behalf.  He further indicated that matters in defense, mitigation, and/or extenuation would be presented in person.

4.  After hearing all matters presented in defense, mitigation, and/or extenuation and after having considered the violation(s) of the UCMJ, the battalion commander imposed the following punishment on the applicant:  a reduction in rank and pay grade from SSG/E-6 to sergeant (SGT)/E-5; suspended, to be automatically remitted if not vacated before a period which is illegible on the document.  The battalion commander, the officer administering the punishment, directed that the original DA Form 2627 be filed in the applicant's performance section in his Official Military Personnel File (OMPF).  On 28 November 2011, the applicant indicated with his initials in the appropriate space on the DA Form 2627 that he elected not to appeal the punishment.

5.  On 14 May 2012, the applicant's suspension of punishment was vacated due to the applicant making a false official statement on 4 May 2012 that he was not involved in an inappropriate relationship with an officer.  The applicant was present at the vacation proceeding and he was given an opportunity to rebut.  The battalion commander directed the action be filed in the applicant's performance fiche of his OMPF and the applicant was reduced in rank and grade to SGT/E-5.

6.  On 31 May 2012, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for violating a lawful general regulation by having an inappropriate relationship with an officer, receiving nude photos of her, and by making a false official statement to an officer.

7.  On 31 May 2012, the applicant indicated he elected not to demand a trial by court-martial, he elected to have a closed hearing and he elected not to have a person speak in his behalf.  He further indicated that matters in defense, mitigation, and/or extenuation would be presented in person.
8.  After hearing all matters presented in defense, mitigation, and/or extenuation and after having considered the violation of the UCMJ, the battalion commander imposed the following punishment on the applicant:  a reduction in rank and pay grade from SGT/E-5 to SPC/E-4.  The battalion commander, the officer administering the punishment, directed that the original DA Form 2627 be filed in the applicant's restricted section in his OMPF.  On 31 May 2012, the applicant signed the form, but he failed to indicate with his initials in the appropriate space on the DA Form 2627 whether or not he elected to appeal the punishment.  Evidence contained in the applicant's ERB indicates he was reduced in rank and grade to SPC/E-4 on 31 May 2012.

9.  The applicant provides numerous letters which attest to his leadership, compassion, professionalism, integrity and character.  

10.  The applicant provides a portion of what appears to be an administrative separation board concerning the applicant which adjourned on 17 June 2013.  What he provides is incomplete and not present in his Official Military Personnel File.  The provided Verbatim Findings and Recommendations state the allegation in the notification of administrative separation in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, is not supported by preponderance of the evidence.  Soldier must be retained.  The document is authenticated with the board president and two board members' signatures.

11.  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 3-17 states the purpose of suspending punishment, ordinarily, will be to grant to a deserving member a probationary period during which he/she may show that he/she deserves remission of the suspended portion of his/her NJP.  If, because of further misconduct by the member within this period, it is determined that remission of the suspended punishment is not warranted, the suspension may be vacated and the suspended portion of the punishment executed.  Action vacating a suspension will be recorded in accordance with Notes 10 and 11, Part III, DA Form 2627.  Unless the suspension is vacated prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action.  

   c. 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 argues, in effect, that his rank/grade of SSG/E-6 should be reinstated because an administrative separation board determined the 


allegations in the notification of separation in accordance with Army Regulation 635-200, chapter 14, were not supported by a preponderance of evidence.  

2.  The evidence of record shows he received an Article 15 on 28 November 2011.  His suspended punishment was vacated on 14 May 2012, because he made a false official statement to an officer.  This resulted in a reduction in rank/grade from SSG/E-6 to SGT/E-5.  On 31 May 2012, he received an Article 15 that resulted in a reduction in rank/grade to SPC/E-4.  The proceedings appear to have been conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportionate to the offense(s) committed.  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).  

3.  In each instance, the evidence of record shows he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal  through proper channels.  He did not provide sufficient evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during either proceeding, or that the UCMJ was violated in any way.

4.  While it appears an administrative separation board determined the allegation(s) in the notification of administrative separation were not supported by preponderance of evidence, without the complete board proceedings, there is no way of knowing what the allegations were in his notification of separation.  Regardless, it does not invalidate the applicant's punishment under the UCMJ.  There is neither an error nor an injustice; therefore, there is no reason to restore his rank.

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)                                         AR20140008619





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ABCMR Record of Proceedings (cont)                                         AR20140008619



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