IN THE CASE OF:	  

		BOARD DATE:	  7 May 2015

		DOCKET NUMBER:  AR20140015427 


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, in effect, reinstatement of his rank/grade to specialist (SPC)/E-4 and removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) from his records.

2.  The applicant states, in effect:

     a.  He received a field grade Article 15 which resulted in the loss of rank just a few months before his release from active duty for failing a random urinalysis.  He feels that it was unjust because the Judge Advocate General’s (JAG) office and his command told him that it would be in his best interest to accept the nonjudical punishment (NJP).

    b.  His attorney said that it would not be hard to have his charges removed due to the foul play involved with the urinalysis testing.   He had picture evidence that the testing area was not set up properly as well as witnesses willing to testify that there were people involved in the testing who were not authorized.  There was also a history of drug use among the testers.  He alleges his urine sample was tampered with and swapped with another Soldier’s sample.

     c.  This is his second time contacting the Board.  The first time was approximately 3 years ago and he was told that he needed to provide supporting evidence with his application.  He does not have any evidence.  He tried contacting the Department of Veterans Affairs to retrieve his military records to no avail.  

     d.  He has no documents to support his application.  It has been 8 years since the incident.  The pictures he had were lost and the names of those involved were also lost or forgotten.    

     e.  The reason he chose not to pursue court-martial action was due to the time it would have taken to have his case heard by the court because he was close to his expiration of his term of service and started to out-process the installation.  He had moved his family too.  He was told the Article 15 would not have any impact on his civilian career.  He has found this to be untrue.     

3.  The applicant does not provide any additional evidence. 

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 enlisted in the Regular Army on 9 October 2003.  After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman).  The highest rank he attained was specialist/E-4.    

3.  On 8 April 2007, he was honorably released from active duty and transferred to the U.S. Army Reserve.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years and 6 months of net active service this period.  He was released in the rank of private/E-1, and the effective date of his pay grade was 12 February 2007.  

4.  He states that he received a field grade Article 15 for failing a random urinalysis test and his punishment resulted in his reduction to the rank of private/E-1.

5.  The DA Form 2627 and allied documents were not filed in his official military personnel file (OMPF) and the applicant did not provide copies of the documents for the Board's review.   
6.  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 NJP may be imposed to correct, educate, and reform offenders whom 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 record 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.

	b.  Paragraph 3-37b(1) states that for Soldiers in the rank of SPC or corporal (CPL) and below (prior to punishment), the original will be filed locally in unit NJP or unit personnel files.  Such locally-filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier's transfer to another general court-martial convening authority, whichever occurs first.  For these Soldiers, the imposing commander should annotate item 4b of the DA Form 2627 as "not applicable (N/A)."

DISCUSSION AND CONCLUSIONS:

1.  It is presumed that because the applicant was a SPC at the time of the imposition of the NJP, the DA Form 2627 and allied documents were filed locally until he separated from service. 

2.  With respect to his request to have his rank restored, he had the opportunity to decline the Article 15 and demand trial by court-martial at the time it was issued.  He did not do so.  A commander's decision cannot or should not be reversed without compelling evidence that it was unlawful or egregiously unfair.  He has presented no such evidence.

3.  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.  He states that he had a defense attorney and was 

given the right to demand trial by court-martial.  However, he elected not to appeal his punishment.

4.  His dissatisfaction with the outcome of this Article 15 does not invalidate it.  He violated the UCMJ and he was punished for it.  The resultant action appears to have been a reduction to PVT/E-1.  Any negative impact of this NJP appears to be a natural result of his actions.

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)                                         AR20140015427



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ABCMR Record of Proceedings (cont)                                         AR20140015427



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