IN THE CASE OF:	  

		BOARD DATE:	  26 May 2015

		DOCKET NUMBER:  AR20140018041 


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, comments, and supporting documents to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's previous request for removal a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 20 August 2013, from his official military personnel file (OMPF).  He also requests restoration of his rank/pay grade to staff sergeant (SSG)/E-6, and entitlement to all back pay and allowances.

2.  Counsel states he is providing new arguments and evidence that was not previously considered. 

3.  Counsel provides:

* DA Form 2627
* DA Form 1574 (Report of Proceedings by Investigation Officer (IO)/Board of Officers)
* Certificate of Promotion, dated 1 March 2013
* two orders
* a Defense Finance and Accounting Service Military Leave and Earnings Statement for the period 1 to 31 August 2013
* two letters, dated 30 January and 10 July 2014
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings (ROP) for AR20120006249
* statement by the applicant, undated

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120006249, on 2 July 2014.

2.  As a new argument and evidence, counsel states:

	a.  The Board's previous decision contained legal and factual errors.  Counsel previously made the argument that Army regulations do not permit promotions to be revoked a full 7 months after the applicant's promotion.  The ROP suggested there were no promotion or reduction orders in the applicant's OMPF and he was now providing the orders.  He also previously made the argument that there was no proof the applicant committed the alleged misconduct.  An administrative separation board (i.e., board of inquiry (BOI)), after hearing all of the evidence and examining witnesses, agreed and the DA Form 1574 is being provided and should be considered by the Board.  That decision should be used as a basis to restore the applicant to the proper rank.

	b.  The process of reducing a Soldier in rank is very specific in accordance with the UCMJ and Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions); however, none of the cited procedures were used.  AR 600-8-19, paragraph 3-26a, states a board is actually required to remove a Soldier for substandard performance.  Written notification and due process are required in every misconduct case.  

	c.  AR 600-8-19, chapter 10, deals with reduction [in rank] for convictions or Article 15 punishment.  Other reasons include administrative separation, failure to complete training, reduction or unsatisfactory participation in the Reserves, failure to complete professional military education, and voluntary reduction.  There is not a single provision in AR 600-18-19 that authorized the commander to reduce the applicant from SSG to sergeant (SGT) with no written notification and with a backdated promotion order that had no relevance to his date of rank (DOR).   

3.  The applicant enlisted in the Regular Army on 3 July 1996.  He served through several reenlistments and/or extensions and was promoted to the rank of SGT on 1 March 2007.  He was assigned to Headquarters and Headquarters Company (HHC), 17th Combat Sustainment Battalion (CSB), 2nd Engineer (EN) Brigade, Joint Base Elmendorf-Richardson (JBER), AK.  

4.  Counsel provides Permanent Orders (PO) 059-061, dated 28 February 2013, issued by Headquarters (HQ), 2nd En Brigade, JBER, promoting the applicant to the rank of SSG effective 1 March 2013.  These orders stated "The promotion is not valid and this order will be revoked if he is not in a promotable status on the effective date of promotion" (emphasis added).

5.  The applicant's record contains a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) he received in April 2013 covering 12 months of rated time for the period 11 February 2012 through 10 February 2013 while serving as the Food Operations NCO, 2nd EN Brigade.  His rater was Sergeant First Class (SFC) RS and his senior rater was Master Sergeant (MSG) MP.  Part 1c (Rank) of the NCOER shows his rank as SSG and Part 1d (DOR) his DOR as 1 March 2013.  This NCOER also shows:

* in Part IV (Army Values/Attributes/Skills/Actions) his rater checked the "Yes" blocks for all of the Army values
* in Part IVb through IVf his rater checked all the "Success" blocks and entered, in part, the comments "displayed loyalty and leadership support to the chain of command" and "held all Soldiers equally accountable for their actions and standards"
* that he passed the Army Physical Fitness Test (APFT) on 15 May 2012 
* in Part IVc ((Physical Fitness and Military Bearing) his height/weight was 68 inches and 211 pounds and "Yes" he met the Army height/weight standards
* in Part Ve (Senior Rater Bullet Comments) his senior rater, in part, entered the comment "potential is unlimited; strong performance by a dedicated and very competent NCO"  

6.  The rater and senior rater signed and dated the NCOER on 9 April 2013.  The applicant signed and dated the NCOER on 10 April 2013 in Part IIe (Rated NCO - I understand my signature does not constitute agreement or disagreement with the evaluation of the rater and senior rater.  I further understand my signature verifies that the administrative data in Part I (Administrative Data), the rating officials in Part II (Authentication), the duty description to include the counseling dates in Part III (Duty Description) and the APFT and height/weight entries in Part IVc are correct.  I have seen the completed report.  I am aware of the appeals process of AR 623-3 (Evaluation Reporting System). 

7.  This NCOER is currently filed in the performance folder of his OMPF.

8.  Counsel provides PO 189-01, dated 8 July 2013, issued by HQ, 2nd En Brigade, JBER, wherein it revoked PO 059-061, dated 28 February 2013, pertaining to the applicant's promotion to SSG.  As a result of the revocation orders, the applicant's rank reverted to SGT with a DOR of 1 March 2007.

9.  Counsel provides and the performance folder of the applicant's OMPF contains a DA Form 2627 that shows, on 20 August 2013, the applicant's battalion commander notified the applicant that he was considering whether he should be punished under Article 15, UCMJ, for the following misconduct:  In that he did, at or near JBER, AK, between on or about 14 April and 14 May 2013, with intent to deceive, submit an official record, to wit a DA Form 705 (APFT Scorecard), which was entirely false and was then known by him to be false.

10.  The DA Form 2627 shows that after consulting with legal counsel the applicant declined a trial by court-martial, requested a closed hearing, did not request a person to speak on his behalf, and he presented matters in his defense or mitigation.

11.  On 27 August 2013, the imposing commander, after considering all matters presented in the applicant's defense, imposed nonjudicial punishment (NJP) and directed the applicant's reduction in rank to specialist (SPC)/E-4.  He also directed the DA Form 2627 be filed in the performance folder of his OMPF.  On 27 August 2013, he elected to appeal the Article 15 to the next higher commander.  On 10 September 2013, his brigade commander denied his appeal and he was reduced to the rank of SPC effective 27 August 2013. 

12.  The applicant's record contains a DA Form 2166-8 he received in February 2014 covering 7 months of rated time for the period 11 February through 27 August 2013 while serving as the Food Service NCO, 2nd EN Brigade.  His rater was SSG CC and his senior rater was SFC RS.  Part 1c of the NCOER shows his rank as SPC and Part 1d his DOR as 27 August 2013.  This NCOER also shows:

* in Part IV his rater checked the "No" blocks for the Army values of Loyalty, Duty, Honor, Integrity, and Personal Courage
* he entered, in part, the comments "compromised integrity by submitting false documents for promotion" and "displayed lack of personal courage and values needed in our Army of today"
* in Part IVc) his rater checked the "Needs Improvement (Much)" block and entered, in part, the comment "unable to manage his weight effectively resulting in placement on the Army Weight Control Program"
* in IVd (Leadership) his rater checked the "Needs Improvement (Much)" block and entered, in part, the comment "failed to live up to the Army values; punished under UCMJ for submitting false official documents for promotion" 
* in Part Ve his senior rater entered the comments "do not promote; showed total disregard for Army values" and "resists suggestions for improvement and actively works against the orders of his superiors"  

13.  The rater and senior rater signed and dated the NCOER on 6 February 2014; the applicant signed and dated the NCOER on 10 February 2014 in Part IIe.  This NCOER is currently filed in the performance folder of his OMPF.  There is no evidence that shows the applicant appealed this NCOER.

14.  Counsel provides a DA Form 1574, dated 1 April 2014, wherein it shows a BOI convened on that on that date at 1308 hours to determine if the applicant should be retained on active duty and adjourned on that date at 1606 hours.  This form shows the BOI found that by a preponderance of the evidence that the applicant did not commit a serious offense, to wit, falsify an official DA Form 705. The board recommended the applicant be retained in the service and receive a rehabilitative transfer to another unit.  

15.  This form does not show who the BOI interviewed or what documentation they reviewed; nor does it contain a signature of the approving authority to show the BOI findings and recommendations were approved, disapproved, or approved with exceptions.

16.  Army Regulation 600-8-19 states that instruments (orders) announcing erroneous promotions will be revoked when a Soldier has been erroneously promoted.

17.  Army Regulation 600-8-104 (AMHRR Management) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF.  Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF.  Table B-1 (Authorized documents) shows the DA Form 2627 will be filed in either the performance or the restricted folders of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the DA Form 2627 the applicant received on 27 August 2012 should be removed from his OMPF, he was improperly reduced to SSG, a BOI found no proof he committed the misconduct, and his rank should be restored to SSG. 

2.  The evidence of record confirms PO 059-061 were published on 28 February 2013 promoting the applicant to SSG effective 1 March 2013 and he was paid as a SSG for 6 months.  However, it was subsequently determined the promotion was not valid as the applicant had falsified an APFT scorecard and had not been in a promotable status when he was promoted to SSG.  Therefore, in accordance with governing regulations, orders were published revoking PO 059-061 and his rank was properly adjusted to SGT with a DOR of 1 March 2007.  There is no evidence of an injustice or error.

3.  On 27 August 2013, he received an Article 15 for falsifying the APFT scorecard and part of the NJP imposed was reduction from SGT to SPC.  The evidence of record shows the commander administering the Article 15 proceedings determined he had committed the offense in question during an Article 15 hearing after considering all the evidence.  By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced the Soldier committed the offense he was charged with.   

4.  The applicant waived his right to a trial by court-martial and opted for an Article 15 hearing and he was afforded the opportunity to appeal the Article 15 to the next higher commander and present any mitigating issues at that time.  However, the brigade commander upheld his reduction to SPC and he was appropriately reduced to SPC effective 27 August 2013.  

5.  Contrary to counsel's contention that a BOI found no proof the applicant committed the misconduct, the BOI simply found the preponderance of evidence they reviewed showed he did not commit the offense of falsifying the APFT scorecard.  The purpose of the BOI was to give the applicant a fair and impartial hearing to determine if he should be retained in the Army.  The BOI recommendations were limited to either retention or elimination and the BOI findings had no bearing on whether he was guilty of submitting a falsified APFT scorecard as confirmed in the Article 15, dated 27 August 2013. 

6.  The applicant violated the UCMJ and he was accordingly punished.  His punishment included a reduction of one grade.  There is no evidence that shows the Article 15 is untrue, inaccurate, or that his reduction to SPC was unjust or in error.  As required by the governing regulation, the DA Form 2627 is properly filed in the performance folder of his OMPF as directed by the imposing commander.

7.  In view of the foregoing, there is no basis to grant the requested relief.



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 to amend the decision of the ABCMR set forth in Docket Number AR20140006249, dated 2 July 2014.



      _______ _   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)                                         AR20140018041



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ABCMR Record of Proceedings (cont)                                         AR20140018041



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