IN THE CASE OF:	   

		BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20150003536 


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, to set aside his Article 15 and restoration of his rank to staff sergeant (SSG)/pay grade E-6.

2.  The applicant states, in effect, that he received an Article 15 from his battalion commander at Camp Virginia, Iraq, on 23 March 2009, because he had surgery on a very painful hydrocele but did not have permission to do so.  He contends that after returning to his unit he was reduced to sergeant (SGT) /E-5 for basically taking care of his health.  He served proudly in the U.S. Army and he received numerous decorations.  His conduct was always outstanding.  He volunteered to a 9-month tour in Kuwait/Iraq and he was the most professional mechanic in the unit. The battalion commander had a strict sick call policy and most Soldiers just hid their medical problems.  He could not take it anymore and expressed himself in a disrespectful way toward his leadership and he regrets it. 

3.  The applicant provides:

* three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* his Temporary Disability Retired List (TDRL) determination
* DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings)
* Orders 03-351-00015, dated 17 December 2003
* Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter)
* Certificate of Achievement


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 enlisted in the U.S. Army Reserve (USAR) on 21 October 1982 as a private (PV1/E-1).  On 17 December 2003, he was promoted to SSG/E-6.

3.  The complete facts and circumstances of his reduction to SGT are not available; however, his Official Military Personnel File (OMPF) contains a DA Form 2166 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 20 July 2008 through 28 May 2009, given while he was assigned to the Headquarters and Headquarters Company, 100th Battalion, 442nd Infantry, Camp Virginia, Kuwait.  

4.  This evaluation shows his rank as SGT, with a date of rank as 14 April 2009.  Part IV (Values/NCO Responsibilities) contains the entries:

   a.  Physical Fitness & Bearing - displayed outburst or resisted in frustration concerning added mission requirements man-hour documentation and safety

   b.  Leadership - preferred working on the floor to leading his shift; eventually replaced as shift leader

5.  His OMPF is void of any Uniform Code of Military Justice (UCMJ) documents related to his reduction and the applicant did not provide any documents for consideration.

6.  He provided a copy of his:

   a.  DA Form 199 which shows an Informal PEB convened on 4 February 2015 at Joint Base Lewis McChord, WA.  The PEB found the applicant was physically unfit and recommended a disability rating of 70 percent with permanent disability retirement based on his post-traumatic stress disorder (PTSD).
   b.  Certificate of Achievement awarded for his outstanding performance during Operation Iraqi Freedom, 2008-2009.

7.  Army Regulation 27-10 (Military Justice) defines the term setting aside and restoration. Paragraph 3-28 states that 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.  Nonjudicial punishment (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.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

8.  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 requests, in effect, that his Article 15 be set aside and restoration to his former rank, SSG.

2.  It is the imposing commander’s function to reexamine issues of guilt or innocence under Article 15 of the UCMJ and this should not be upset unless the commander's determination is clearly unsupported by the evidence.  He contends that his overall record was commendatory and he was reduced for disrespecting his leadership and violating the sick call policy.  The NCOER he received during his tour of duty in Kuwait/Iraq shows he had an outburst related to being assigned additional mission requirements and that he was also relieved as shift leader because he preferred working on the floor.

3.  It appears that he violated the UCMJ and he was punished for it.  There is neither an error nor an injustice and there is no reason to restore his rank.

4.  Lacking evidence to the contrary, it must be presumed that his NJP proceedings were conducted in accordance with law and regulation.  There is no evidence of an error or an injustice.  

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)                                         AR20150003536





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ABCMR Record of Proceedings (cont)                                         AR20150003536



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