BOARD DATE:	  6 October 2015

		DOCKET NUMBER:  AR20150000345 


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 correction of his record by:

     a.  Restoration of his rank/grade of sergeant (SGT)/E-5 to his original date of rank (DOR) with back pay and allowances.

	b.  Setting aside the punishment imposed upon him under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).

2.  The applicant states, in effect:

* the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) was altered and is not filed in his official military personnel file 
* Specialist T___ and his command misrepresented facts and forged documents
* reduction orders are not filed in his OMPF
* delays and oversights demonstrate error and injustice within the administrative process
* he is entitled to correction of his record to set aside the Article 15 and restore his rank and date of rank

3.  The applicant provides:

* DA Form 2627
* Orders
* Certificate of Good Conduct
* two DA Forms 2823 (Sworn Statement)
* excerpts of Army Regulation (AR) 600-8-104 (Army Military Human Resource Records Management)
* Article 15 Fact Sheet
* College transcripts
* Bachelor of Arts Certificate
* Associate of Science Certificate
* information pertaining to the False Claim Act
* information pertaining to toxic leaders in the U.S. Marine Corps (USMC)
* Promotion Certificate
* Personnel Qualification Record
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report) 
* Army Review Boards Agency decision documents
* Self-authored statement

 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.  Having prior active and reserve duty in the USMC, the applicant enlisted in the ARNG on 1 November 2007 in the rank/pay grade of sergeant (SGT)/E-5.

3.  On 7 November 2009, he was ordered to active duty in support of Operation Enduring Freedom. 

4.  He provides a DA Form 2166-8 for the period 19 February 2008 through 18 February 2009 which shows in:

   a.  Part IV, block a (Army Values), all entries were all marked "YES" by the rater.
   
   b.  Part V (Overall Performance and Potential):
   	
   (1)  block a (Rater - Overall potential for promotion and/or service in positions of greater responsibility), the rater placed an "X" in the Among the Best.
   
		(2)  block c (Senior Rater - Overall performance), the senior rater placed an "X" in the Successful 2 block.

		(3)  block d (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility), the senior rater placed an "X" in the Superior 2 block.

	c.  Part IId, the reviewer indicated with an "X" that he concurred with the rater and senior rater evaluations.

5.  His official military personnel file contains a relief-for-cause DA Form 2166-8 for the period 7 November 2009 to 9 September 2010, which the applicant declined to sign, which shows:

	a.  He received ratings of "No" for the Army Values of "Respect, Honor, and Integrity."

	b.  He received ratings of "Needs [some] Improvement" for the Values/NCO Responsibilities of Competence, Physical Fitness and Military Bearing, and Responsibility and Accountability.  He received "Needs [much] Improvement" in Leadership.

	c.  He received an overall rating of "Marginal."

	d.  His senior rater marked his overall performance and overall potential for promotion and service as Poor 5.

6.  Orders 268-907, issued by Headquarters, Military Department, State of Washington, Camp Murray, Tacoma, WA, dated 25 September 2010, show he was reduced in grade from SGT/E-5 to specialist (SPC)/E-4 effective 10 September in accordance with AR 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-3 (Reduction for Misconduct).

7.  He provides Permanent Orders 301-037, issued by Headquarters, U.S. Army Garrison, Fort McCoy, WI, dated 28 October 2010, which show he was awarded the Army Good Conduct Medal for the period 7 November 2009 to on or about    6 November 2010.

8.  The complete facts and circumstances pertaining to his reduction from SGT/E-5 to SPC/E-4 and a copy of the Article 15 resulting in his reduction are not contained in the available records.  There is no evidence and he did not provide any to show he appealed his punishment.  His record is also void of any evidence that shows he was subsequently advanced to SGT/E-5 prior to his discharge.

9.  On 14 December 2010, he was released from active duty as a SPC/E-4.

10.  He provides multiple documents including a heavily redacted and incomplete copy of a DA Form 2627, ABCMR decision documents, USMC Good Conduct Certificate, civilian education completion certificates, numerous excerpts/ comments related to court cases and other matters of law, and an extract from AR 600-8-14.  

11.  Army Regulation 27-10 (Military Justice) states that commanders may impose nonjudicial punishment (NJP) for the administration of discipline under the provisions of Article 15, UCMJ.  Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15.  This regulation also stipulates that only one appeal is permissible under Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.

     a.  Paragraph 3-6 addresses the filing of a record of NJP and provides, in pertinent part, 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 3-28 describes setting aside and restorations.  This 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 Article 15.  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 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.

	c.  Paragraph 3-37b(2) states that for Soldiers in the rank 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.   Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his Article 15 should be set aside, his rank restored, and that he should receive back pay and allowances due to misrepresentation of facts and forged documents have been duly noted.  However, he has not provided any documentary evidence that supports this contention.

2.  He provides a DA Form 2166-8 for the period 19 February 2008 to 18 February 2009, which shows he was rated "Among the Best" by his rater.  However, his OMPF contains a relief-for-cause DA Form 2166-8 for the period 7 November 2009 to 9 September 2010, which shows his rater rated him as "Marginal" and his senior rater rated him as "Poor."

3.  Although the complete facts and circumstances of his reduction from SGT/E-5 to SPC/E-4 and the Article 15 itself are not contained in his available record, it is reasonable to presume his chain of command exercised its disciplinary authority prior to his discharge.  Accordingly, he would have been afforded an opportunity to appeal the reduction to a higher authority, prior to a final decision being rendered.

4.  There is no evidence and he did not provide any to show he appealed his punishment.  His record is also void of any evidence that shows he was subsequently promoted to SGT/E-5 prior to his discharge.

5.  He provides permanent orders showing he was awarded the AGCM after his reduction to SPC; however, those orders were not issued by the same command who imposed his punishment.  It appears the orders for the AGCM were published without knowledge of his NJP.

6.  He provides civilian education and good conduct documents reflecting his accomplishments in that regard.  He also provides various ABCMR decision documents and excerpts related to regulatory policy and law.  However, it is not apparent how these documents might mitigate the misconduct that resulted in his reduction in rank.

7.  In the absence of evidence to the contrary, it must be presumed that he was properly reduced from SGT/E-5 to SPC/E-4 as a result of his chain of command imposing punishment for his violation of the UCMJ.

8.  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 that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  There does not appear to be any 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)                                         AR20150000345



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150000345



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1