IN THE CASE OF:  	  

		BOARD DATE:  15 October 2015	  

		DOCKET NUMBER:  AR20150002781 


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 his rank of sergeant (SGT)/pay grade E-5 be restored.

2.  The applicant states his reduction was an injustice and inappropriate judgment because his first sergeant told him that he would send him back to Africa.  He went to file an equal opportunity (EO) complaint and his first sergeant accused him with an unverifiable act and took his rank from SGT to specialist (SPC)/pay grade E-4. 

3.  The applicant provides:

* Two DA Forms 4856 (Developmental Counseling Form)
* Enlisted Record Brief (ERB)
* DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag))
* an unreadable Magistrate's Order - Misdemeanor Only) from the State of North Carolina

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.  On 31 March 2005, he enlisted in the Regular Army for 4 years.  His 
DD Form 1966 (Record of Military Processing - Armed Forces of the United States), signed on 25 March 2005, indicates he was never married and he had no dependents.

3.  On 6 September 2011, as a SGT, he was formally counseled by his platoon sergeant for failing to report for formation and failing to report to work at all.  The platoon sergeant's plan of action was to have the suspended Article 15 lifted and that he receive the full punishment.

4.  On 22 September 2011, as a SGT, he was formally counseled by his platoon sergeant for leaving his place of duty without authorization.

5.  His ERB shows his date rank (DOR) for SGT as 1 September 2009 and his DOR for SPC/pay grade E-4 as 4 October 2011.  The circumstances or the manner in which this reduction occurred are not available in his official military personnel file (OMPF).

6.  On 18 October 2011, as a SPC, he was formally counseled by his battery commander about his need to prepare a Family Care Plan to provide his family with a plan in the event of deployments or to fulfill his military duties.

7.  On 8 November 2011, he was notified action was being initiated to separate him for parenthood.  The applicant waived all of his rights.

8.  On 8 November 2011, his commander recommended he be separated from the Army by reason of his failure to provide an adequate family care plan.  The recommendation states there were no records of court-martial and that record of other disciplinary action, including NJP, was attached.  The record was not attached to the copy of the recommendation in his OMPF.

9.  The recommendation for separation was approved by the appropriate authority, and on 20 January 2012 he was discharged by reason of parenthood.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged in the grade of SPC with a DOR of 4 October 2011.

10.  A Soldier may be administratively reduced for misconduct or inefficiency, not as a result of a court-martial sentence or any other action under the Uniform Code of Military Justice (UCMJ), in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions).  Reductions from a court-martial or any other action under Article 15, UCMJ, are provided for in Army Regulation 27-10 (Military Justice).

11.  Army Regulation 27-10 prescribes policies and procedures pertaining to the administration of military justice.

	a.  Paragraph 3-4 states that a commander will personally exercise discretion in the non-judicial punishment process by:

		(1)  evaluating the case to determine whether proceedings under Article 15 should be initiated;

		(2)  determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial; and

		(3)  determining the amount and nature of any punishment, if punishment is appropriate.

	b.  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.  Nonjudicial punishment 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.

	c.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  His ERB shows his DOR for SGT as 1 September 2009 and his DOR for SPC as 14 October 2011 indicating he was reduced to SPC on 14 October 2011.

2.  There is no record of NJP in his OMPF.  His OMPF does not document the reason or the manner in which he was reduced from SGT to SPC.

3.  The applicant contends his reduction was an injustice and inappropriate judgment because his first sergeant made an inappropriate comment and he went to file an EO complaint.  He contends his first sergeant accused him of an unverifiable act which was the reason he was reduced to SPC.  However, the applicant provided no evidence to support his contentions.

4.  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.

5.  Due to the lack of documentation of the circumstances concerning his reduction in grade, there is insufficient evidence to show an injustice occurred.

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)                                         AR20150002781





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150002781



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1