IN THE CASE OF:	  

		BOARD DATE:	  2 September 2014

		DOCKET NUMBER:  AR20140012499 


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:

The applicant defers his request, statement, and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 12 December 2013, from the performance section of the applicant's official military personnel file (OMPF). 

2.  Counsel states the applicant was found guilty of three specifications in violation of the UCMJ.  The incidents at issue include failure to button a pocket and failure to remove a nametag, both occurring on 27 September 2013.  He was also disrespectful by shrugging his shoulders on 1 October 2013.  Counsel argues that there were material factual errors in the Article 15, as well as command discretion, and a material injustice in that the Article 15 impacts the applicant's career. 

3.  The applicant/counsel provides:

* Multiple sworn statements
* The contested Article 15 and imposing commander's actions
* DA Form 268 (Report to Suspend Favorable Personnel Actions) 
* Article 15 Punishment Worksheet
* Appeal memorandum
* Multiple letters of appreciation
* Multiple DA Forms 4856 (Developmental Counseling Form)
* Multiple Noncommissioned Officer Evaluation Reports (NCOER)
* Multiple award certificates
* Multiple certificates of achievement
* Multiple letters of recommendation/character reference letters

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant enlisted in the Regular Army on 29 June 2004 and he holds military occupational specialty 19D (Cavalry Scout).  

2.  He has served through a reenlistment and an extension in a variety of stateside and overseas assignments, including multiple tours in Korea.  He was promoted to sergeant (SGT)/E-5 on 1 February 2008.  

3.  He received multiple awards and decorations and completed various training courses.  He was also issued multiple letters of recommendation or achievement. Furthermore, his NCOERs reflected "Among the Best" ratings by his rater and "Successful/Superior" ratings by his senior rater.   

4.  At the time of his incident, he was assigned to A Troop, 1st Squadron, 91st Cavalry Regiment, 173rd Airborne Brigade Combat Team, Germany.  

5.  On 12 December 2013, at a closed hearing, the applicant declined trial by a court-martial.  He was found guilty of and accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for:

* willfully disobeying a lawful order from an NCO on 29 September 2013
* willfully disobeying a lawful order from another NCO on 1 October 2013
* being disrespectful toward an NCO on 1 October 2013 by shrugging his shoulders and rolling his eyes

6.  His punishment consisted of a reduction to specialist/E-4, a forfeiture of $1,201.00 pay (suspended), and 35 days of extra duty.  The imposing officer ordered the Article 15 filed in the performance section of the applicant's OMPF. 

7.  On 14 December 2013, through his defense counsel, the applicant appealed his punishment to the next higher commander.  His argument was based on the premise that the issues were simple disagreements between NCOs in handling minor infractions and that these issues should not have been raised to a field grade Article 15. 

8.  After reviewing the applicant's case and finding the proceedings were conducted in accordance with law and regulation, the next higher commander, Commander, U.S. Army Garrison, denied his appeal on 23 December 2013.  The applicant acknowledged notification of this denial on 9 January 2014. 

9.  A review of his OMPF reveals that the contested DA Form 2627 is filed in the performance section of his OMPF. 

10.  The applicant provides:  

	a.  Multiple sworn statements from individuals and/or NCOs related to the incidents of the applicant's infractions. 

	b.  Multiple counseling statements from various NCOs in relation to his infractions. 

	c.  Multiple character reference letters and/or letters of recommendation from various junior Soldiers, senior NCOs, and officers.  The authors comment on the applicant's technical and tactical ability, interaction with others, and overall professionalism.

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.  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.  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 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF is as important as the decision relating to the imposition of the NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.

	b.  Paragraph 3-37b(2) states that for Soldiers in the ranks of SGT and above, the original will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the performance section or restricted section of the OMPF 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.

	c.  Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF.  It states that applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates that there must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR.

12.  Army Regulation 600-8-104 (Army Military Human Resource Record Management) provides policies, operating tasks, and steps governing the OMPF. Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or the interactive Personnel Electronic Records Management System.  Table B-1 states Article 15, UCMJ, is filed in either the "Performance" or the "Restricted" folder as directed by item 4b or 5 of DA Form 2627.  

13.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record.  It is not an investigative body.






DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant violated the UCMJ while serving as a SGT and subsequently accepted NJP on 12 December 2013 for willfully disobeying a lawful order on two occasions and being disrespectful toward an NCO.  The imposing commander directed filing the Article 15 in the performance section of his OMPF.  This is where the subject Article 15 is currently filed.

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 the commander's determination is clearly unsupported by the evidence.  The applicant was provided a defense attorney, was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through proper channels.  The applicant further appealed this Article 15 to the next higher commander and his appeal was denied.  

3.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the performance section of his OMPF as directed by the imposing commander.  There is no evidence of record and he provides no evidence to show the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.

4.  Counsel’s arguments that there were material factual errors in the Article 15, as well as command discretion, and a material injustice in that the Article 15 would impact the applicant's career are rejected.  

	a.  The material errors counsel speaks of are the very same sworn statements that were presented to and considered by the imposing commander and appeal authority when they assessed the situation and decided to punish the applicant.  In effect, counsel wants this Board to substitute its own judgment for that of the imposing commander. 

	b.  The material error regarding command discretion is also rejected because the offense in question was very much within the imposing commander's authority and discretion.  How that commander uses his authority is a judgment call made by him as a commander with consult from his senior NCOs and servicing legal office.  Counsel’s dissatisfaction with how the commander used his authority does not invalidate the contested Article 15. 

	c.  The applicant violated the UCMJ and he was punished for it.  Any impact on his career is a natural consequence of his own actions.  

5.  In the absence of an error or an injustice, there is no reason to remove the Article 15 from his records.

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)                                         AR20140012499



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ABCMR Record of Proceedings (cont)                                         AR20140012499



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