IN THE CASE OF:	  

		BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140009437 


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, that his punishment (reduction in grade to  E-4) be set aside and his rank restored to the pay grade of E-5. 

2.  The applicant states that he was not presented charges on a DA Form 2627 (Record of Proceedings under Article 15, UCMJ), that he was unable to seek counsel at Camp Liberty, Iraq due to being on unit watch, He goes on to state that the evidence he put forth in his defense was ignored , that the DA Form 2627 was not reviewed by a Judge Advocate General (JAG) representative and he was unable to appeal due to threats by senior noncommissioned officers (NCOs). 

3.  The applicant provides copies of his DD Form 214s (Certificate of Release or Discharge from Active Duty), DA Form 2627 dated 7 August 2009, deployment and separation orders, promotion orders, and his Department of Veteran Affairs (VA) Rating Decision.

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 was serving in the West Virginia Army National Guard (WVARNG) as a health care specialist in the pay grade of E-5 when he was ordered to active duty in support of Operation Iraqi Freedom on 11 February 2009. 

3.  The DA Form 2627 provided by the applicant with his application shows that he was serving at Camp Stryker, Iraq on 7 August  2009 when nonjudicial punishment (NJP) was imposed against him for feigning mental lapse, physical pain and mental derangement during a time of war for the purpose of avoiding service and for wrongfully communicating a threat to harm a person with a weapon. 

4.  The applicant elected not to demand trial by court-martial and requested a closed hearing.

5.  The imposing commander imposed a reduction to the pay grade of E-4 and the applicant elected not to appeal the punishment.

6.  While the medical proceedings are not present in the available records, his DD Form 214 shows that on 18 May 2011, he was honorably retired in the pay grade of E-4 under the provisions of Army Regulation 635-40 due to disability, temporary.

7.  A review of his official records failed to show a copy of the DA Form 2627 on file.  His records also contain an order published by the Joint Forces Headquarters – West Virginia which reduced the applicant to the pay grade of   E-4 on 15 April 2010, due to misconduct. 

8.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ.  Paragraph 3-16d (4) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  

9.  Paragraph 3-18 of the military justice regulation contains guidance on notification procedures and explanation of rights.  It states, in pertinent part, that the imposing commander will ensure the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15. It further stipulates the Soldier will be informed of the following:  the right to remain silent, that he/she is not required to make any statements regarding the offense or offenses of which he/she is suspected, and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial.  In addition, it states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, to present evidence, to request to be accompanied by a spokesperson, an open hearing, and to examine available evidence. 

10.  Paragraph 3-28 of the military justice regulation provides guidance on setting aside punishment and restoration of rights, privileges, or property affected by the portion of the punishment set aside.  It states, in pertinent part, that the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means 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. 
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that NJP was unjustly imposed against him and that it should be set aside and all rights and privileges restored has been noted and appears to lack merit.

2.  The evidence of record confirms that the applicant accepted adjudication of the charges pending against him by Article 15.  The commander administering the Article 15 proceedings determined the applicant committed the offenses in question during a closed Article 15 hearing after considering all the evidence submitted by the applicant.  

3.  By regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses.  The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for a closed hearing.  He requested the opportunity to present matters in rebuttal at the hearing, and to have someone speak on his behalf.  After considering the available evidence, the applicant's commander found him guilty of the alleged misconduct.  

4.  The Article 15 regulatory standard further requires the commander to be convinced beyond a reasonable doubt before he found the applicant committed the offense, which is the same high standard required of courts-martial panels and judges sitting alone as triers of fact prior to entering findings of guilt.  In this case, the applicant has not submitted sufficient evidence to show that his rights were in any way violated or to show that the validity of the Article 15 in question is in any way questionable and should be set aside.  Therefore, the regulatory burden of proof necessary to support removal of the applicant's Article 15 has not been satisfied in this case.  

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)                                         AR20140009437





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ABCMR Record of Proceedings (cont)                                         AR20140009437



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