IN THE CASE OF:	  

		BOARD DATE:	  15 September 2015

		DOCKET NUMBER:  AR20140017756 


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, the punishment contained in the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 25 January 2012, be set aside and that his rank/grade of sergeant first class (SFC)/E-7 be reinstated effective 25 January 2012. 

2.  The applicant states, in effect, the commander who imposed the Article 15 which resulted in his reduction in rank did not have the authority to do so in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), Section II (Reduction for Misconduct), paragraph 10-3h and Army Regulation 27-10 (Military Justice).   

3.  The applicant provides:

* DA Form 2627
* DA Form 4187 (Personnel Action)
* Order to Dismiss
* a letter
* 3 memoranda
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 5 DA Forms 2166-8 (Noncommissioned Officer Evaluation Report)


CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the New Mexico Army National Guard (NMARNG) in the rank/grade of staff sergeant (SSG)/E-6.

2.  The applicant provides a DA Form 2627 which shows on 25 January 2012 he accepted nonjudicial punishment (NJP) for the following misconduct:  

On or about 0145, 19 January 2012, Driving Under the Influence of Alcohol, 2nd Offense, a violation of Article 111 b.(2)(b) Drunken or reckless operation of vehicle, aircraft, or vessel, UCMJ Article 134 (general article), New Mexico Statutes Annotated 1978, 20-12-47 (drunken driving), 20-12-73 (general article), and/or The Adjutant General Policy Letter (2010-05).

3.  The DA Form 2627 also shows the imposing commander was the recruiting and retention commander in the rank/grade of lieutenant colonel (LTC)/O-5.  The applicant did not demand trial by court-martial, rather he requested a closed hearing in which no one spoke in his behalf and he provided matters in his own defense.  Ultimately, he was found guilty of all specifications.  His punishment consisted of a reduction in rank/grade from SFC/E-7 to SSG/E-6 and the loss of one half month’s pay.  He elected not to appeal the decision.  The DA Form 2627 was directed to be filed in the performance section of his official military personnel file (OMPF); however, a review of his OMPF failed to reveal the document.

4.  He also provides:

   a.  DA Form 4187, dated 31 January 2012, which shows he was reduced in rank/grade from SFC/E-7 to SSG/E-6 effective 25 January 2012, in accordance with Army Regulation 600-8-19, paragraph 10-12b.

   b.  An Order to Dismiss, issued by the Metropolitan Court, County of Bernalillo, State of New Mexico, dated 9 August 2014, in which it was ordered that the driving while intoxicated (DWI) charge in his case was dismissed with prejudice.
   
   c.  A memorandum, authored by the commander, 111th Maneuver Enhancement Brigade, dated 18 September 2014, which states the applicant requested to be reinstated to the rank/grade of SFC/E-7 because the DWI charge was dismissed and on the grounds the imposing commander lacked the authority to reduce him from the rank of SFC.  After reviewing the documentation and legal authorities in the matter, the Deputy Staff Judge Advocate (DSJA) determined the demotion was in accordance with the State's military code of justice, but not the UCMJ.  It was recommended the applicant proceed through channels to the Army Board for Correction of Military Records (ABCMR) for consideration.
   
   d.  A memorandum, authored by The Adjutant General, dated 19 September 2014, which states the applicant's request for reinstatement to the rank/grade of SFC/E-7 was not supported by the known, applicable legal authorities and would exceed the scope of his authority to grant; therefore, his request was denied.  It was recommended he take advantage of the procedures available to him through the ABCMR.
   
   e.  A letter to the Board, dated 3 October 2014, in which he states, in effect, he has always conducted himself in the most professional manner and received numerous accolades in his 16 years of service.  Moreover, other seniors, peers and subordinates feel he has been wronged because other Soldiers in the same rank during the same timeframe received no punishment for the same charge and because the imposing authority did not have the authority to reduce an SFC to an SSG.  
   
5.  During the processing of this case, on 10 July 2015, an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau.  The advisory official recommended approval of the applicant's request and stated:

   a.  The applicant claims the UCMJ authority commander (O-5) who initiated and processed the Article 15 was in an O-5 billet; however, the reduction authority for SFC is colonel (COL)/O-6 or above.

   b.  The applicant was reduced in rank from SFC to SSG as the result of Article 15 proceedings in 2012 after being arrested for DWI.  The DWI charge was later dismissed; however, the reduction was processed.
   
   c.  A memorandum from the NMARNG, dated 18 September 2014, states in part, "After reviewing the documentation and legal authorities in this matter, the  DSJA determined the demotion was in accordance with our State's military code of justice, but not the UCMJ."

   d.  Upon coordination with ARNG Judge Advocate, it was determined that even if the reduction complied with State law, as the Maneuver Enhancement Brigade Commander's memorandum indicates, it does not comply with the Federal Army and ARNG standards for a reduction.  Therefore, for this ABCMR action and correction of Federal official Army records (including Federal grade recognition and pay), they believe that the reduction was in error.  For Federal ARNG/ARNGUS purposes, the reduction was beyond the authority of the imposing commander.

   e.  Army Regulation 600-8-19, table 10-1, (Administrative Reduction/Board Convening Authorities) pertaining to the reduction in rank of SFC, Master Sergeant, and Sergeant Major (SGM) states that "Commanders of organizations authorized a commander in the rank of COL or higher.  For separate detachments or companies, the reduction authority will be the next higher headquarters within the chain of command.  The higher headquarters must be authorized a commander in the rank of COL or higher."

   f.  Army Regulation 600-8-19, table 10-1, also states that a reduction board is required for Soldiers in the grade sergeant (SGT) through SGM for any reduction for misconduct (civil conviction) under paragraph 10-3 (except under table 10-2) and for inefficiency under paragraph 10-5.  Board appearance, however, may be declined in writing, which will be considered as acceptance of the reduction board's action.  Upon a review of the applicant's records there is no indication that a reduction board was ever held.

   g.  A memorandum from the NMARNG Adjutant General, dated                    19 September 2014, recommended the applicant apply to the ABCMR.

6.  On 13 July 2015, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

7.  Army Regulation 600-8-104 (Army Military Human Resources Records (AMHRR)) provides policies, operating tasks, and steps governing the AMHRR.  Depending on the purpose, documents will be filed in one of six sections:  performance, service, restricted, medical, other, or State/Territory.  Table B-1 (Authorized Documents) provides guidance for filing the DA Form 2627 in the OMPF.  The DA Form 2627 will be filed in either the performance or restricted section of the OMPF, as directed by item 4b of the DA Form 2627.

8.  Army Regulation 27-10, chapter 3 (NJP), implements and amplifies Article 15, UCMJ, and Part 5, Manual for Courts-Martial.  Chapter 3, Section V (Suspension, Vacation, Mitigation, Remission, and Setting Aside), paragraph 3-28, shows that setting aside and restoration 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 UCMJ, Article 15.  In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case.

   a.  If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier's records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or 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.  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.

   b.  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 (Record of Supplementary Action under Article 15, UCMJ).  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.

9.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to, in effect, set aside the punishment contained in the DA Form 2627, dated 25 January 2012, and reinstate his rank/grade of SFC/E-7 effective 25 January 2012, has been carefully examined and found to have merit.

2.  Army Regulation 600-8-19 clearly identifies the reduction authority for SFC as a commander in the rank of COL or higher.  The regulation further states that a reduction board is required for Soldiers in the grade SGT through SGM for any reduction for misconduct (civil conviction).  The board appearance may be declined in writing; however, a review of the applicant's personnel records fail to show a reduction board was ever held.

3.  Notwithstanding the intent of the imposing commander to instill discipline by the use of the NJP, the reduction in rank/grade to SSG/E-6 under these circumstances is a clear injustice and warrants a review with the intent to restore his rank/grade to SFC/E-7.

4.  In view of the foregoing, it would appear the applicant is entitled to the requested relief.

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  setting aside that portion of the punishment listed on the 25 January 2012 Article 15 pertaining to the loss of one half month's pay and reduction to the rank/grade of SSG/E-6; and
   
	b.  paying him all back pay due from this action.




      _______ _   __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)                                         AR20140017756





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ABCMR Record of Proceedings (cont)                                         AR20140017756



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