IN THE CASE OF:	  

		BOARD DATE:	 5 February 2015 

		DOCKET NUMBER:  AR20140019889 


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 reconsideration of his request to remove a record of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), from his Official Military Personnel File (OMPF) and reinstatement of his rank.

2.  The applicant states:

* he received a field grade Article 15 on 14 January 2014
* he was denied the ability to have witnesses present that would have provided crucial testimony to substantiate exculpatory and mitigating evidence
* the denial was in flagrant violation of his rights as outlined in the Manual for Courts-Martial (MCM) as well as his constitutional right to due process
* due to the violation his NJP should be removed from his OMPF and his rank should be restored
* he emailed CPT C____ to inquire about compelling a witness to provide testimony at his Article 15 hearing
* CPT C____ replied that he could have present witnesses both adversarial and supporting
* he inquired about how to go about getting the witnesses to appear if he was not allowed to speak with them
* CPT____ advised him that he should request the witnesses through his chain of command
* he sent an email to the military police (MP) company first sergeant (1SG) officially requesting personnel to be present at his Article 15 hearing
* 1SG A_______ sent him an email confirming receipt of his request to assist with having witnesses present at his Article 15 hearing
* he received an email from CPT R_____, the MP company commander, denying his request to compel witnesses to be present at his Article 15 hearing

3.  The applicant provides:

* email
* memorandum, subject:  [Applicant], dated 27 October 2014
* DA Form 2823 (Sworn Statement) 
* self-authored statement
* excerpt of the MCM

CONSIDERATIONOF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140007816, on 24 September 2014.

2.  The applicant provides new evidence and argument that warrants reconsideration by the Board.  

3.  The applicant is a sergeant (SGT)/E-5 currently serving on active duty at West Point, NY as a 31B (Military Police).  On 27 June 2014, he extended his current enlistment contract to meet his retention control point (RCP).  His new expiration term of service (ETS) date is 14 December 2015.

4.  Email correspondence beginning on 27 November 2013 shows that he requested to have a list of witnesses present at the second reading of his Article 15 and he was denied that request.

5.  A DA Form 2627 shows the Commander, U.S. Army Garrison (USAG), U.S. Military Academy, imposed NJP against him on 14 January 2014 for:  

* being disorderly by stopping a motorist while on duty, announcing himself as an MP or words to that effect, pursuing her to a parking lot where he continued to yell obscenities and pursue her until an MP threatened the use of non-lethal force by taser, which conduct was of a nature to bring discredit upon the armed forces
* willfully and wrongfully damaging property of a value of more than $500
* wrongfully communicating a threat by yelling "let me get this b----", and "f--- this b----," or words to that effect
* committing assault upon a noncommissioned officer while he was known to be in the execution of MP duties

6.  The DA Form 2627 also shows the applicant was advised of his rights and afforded the opportunity to consult with counsel.

	a.  The applicant did not demand a trial by court-martial.  He requested an open hearing and a person to speak in his behalf.  He indicated that matters in defense, mitigation, and/or extenuation were not presented, but were attached and would also be presented in person.

	b.  On 14 January 2014, having considered all matters presented, the imposing authority found the applicant was guilty of the specifications listed above.  The imposing authority directed the DA Form 2627 be filed in the performance section of the applicant's OMPF.  The following punishment was imposed:  reduction to SGT/E-5; forfeiture of $1,522.00 pay per month for 2 months, suspended, to be automatically remitted if not vacated before 14 July 2014; extra duty for 45 days; and restriction for 45 days, suspended, to be automatically remitted if not vacated before 14 July 2014.

     c.  He appealed the findings.  The reviewing judge advocate determined that the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disproportionate to the offenses committed.  His appeal was denied by the appropriate authority on 23 January 2014.

7.  The DA Form 2627 and allied documents are filed in the performance section of the applicant's OMPF. 

8.  The applicant provides a DA Form 2823, dated 18 January 2014, from C________ C_____, who states he was present during the incident for which the applicant received NJP.  He states he does not recall that the applicant acted violently in any way.

9.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the MCM.  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 sergeant 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 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.

      d.  Paragraph 3-18i states that the Soldier’s request for witnesses in defense, extenuation, or mitigation will be restricted to those witnesses reasonably available as determined by the imposing commander.  To determine whether a witness is reasonably available, the imposing commander will consider the fact that neither witness nor transportation fees are authorized.  Reasonably available witnesses will ordinarily include only personnel at the installation concerned and
others whose attendance will not unnecessarily delay the proceedings.
10.  The MCM, part V (NJP), provides commanders with an essential and prompt means of maintaining good order and discipline and also promotes positive behavior changes in service members without the stigma of a court-martial conviction.  It states the NJP authority will notify service members that they are entitled to have present witnesses, including those adverse to the service member, upon request if their statements will be relevant and they are reasonably available.  For purposes of this subparagraph, a witness is not reasonably available if the witness requires reimbursement by the United States for any cost incurred in appearing, cannot appear without unduly delaying the proceedings, or, if a military witness, cannot be excused from other important duties.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request for removal of a record of NJP from his OMPF or for reinstatement to his prior grade of staff sergeant.

2.  The imposing authority determined that the applicant violated the UCMJ and subsequently accepted NJP, rather than demand trial by court-martial.  On 
23 January 2014, he was found guilty of being disorderly by stopping a civilian motorist while not on duty, announcing himself as an MP, communicating a threat to injure, and committing an assault upon a person known to him to be an MP in the execution of his duties.  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.

3.  He argues that he was not allowed to have witnesses present at the reading of his Article 15 proceedings.  The governing regulation states that he has the right to have witnesses present at his NJP proceedings; however, those witnesses must be reasonably available as determined by the imposing commander.  In the absence of evidence showing otherwise, it must be presumed that the decision to deny his request for witnesses was denied in accordance with the guidelines established in the MCM.  There is no evidence of a violation of his right to due process.

4.  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 the proper channels, which he elected to do.
5.  His NJP proceedings were conducted in accordance with law and regulation and his Article 15 and allied documents should be filed in the performance folder of his OMPF as directed by the imposing commander.  Although his performance prior to the NJP had been outstanding, as evidenced by his awards and evaluations, there is no evidence of record and he provides none to show the DA Form 2627 is untrue or unjust.  In order to remove a document from the OMPF there must be clear and compelling evidence showing the document is untrue or unjust.

6.  In the absence of an error or an injustice, there is no basis upon which to set aside the portion of the NJP pertaining to reduction to SGT.  There is also no evidentiary basis for removing the record of NJP from his OMPF.

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 AR20140007816, dated 24 September 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)                                         AR20140019889



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ABCMR Record of Proceedings (cont)                                         AR20140019889



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