IN THE CASE OF:  

		BOARD DATE:  6 August 2015

		DOCKET NUMBER:  AR20150011587


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, correction of her military records by showing that her nonjudicial punishment (NJP) was set aside, thus restoring her rank and pay grade.  She further requests that the NJP be removed from her records.

2.  The applicant states the investigation leading to her receiving NJP was insufficient. The words of one person in her chain of command, who may have been trying to retaliate against her, were taken over opposing witnesses.  Other documentation and files were not considered.  Thus, the claims of wrongdoing were not adequately reviewed.  She was given NJP for calling an officer a liar, yet she did not use that word.  Nor did she intend in any way to tarnish the officer’s reputation.  These factors show that the Army values have been ignored in this situation, and she believes that in her case, evidence and sworn statements should prevail over any retaliatory actions directed at her.

3.  The applicant provides copies of:

* DA Form 4980-14 (Certificate for award of the Army Commendation Medal) dated 31 March 2015
* DA Form 3349 (Physical Profile) dated in April 2015
* Display of Patient appointments, dated between 17 March and 30 April 2015
* Standard Form (SF) 600 (Chronological Record of Medical Care) dated  30 April 2015 (Only pages 1, 4 and 5 of 7 pages provided)
* Letter from the applicant to the Office of the Installation Adjutant General, dated 18 May 2015
* Letter of support from a retired lieutenant colonel to the applicant’s brigade commander, dated 30 May 2015
* DA Form 2627(Record of Proceedings Under Article 15, UCMJ) dated in June 2015
* Letter from the applicant to her commander, undated
* Memorandum for Record, Subject: Character Statement for the applicant, dated 5 June 2015
* Enlisted Record Brief (ERB) dated 7 June 2015
* Memorandum from applicant to her commander, dated 8 June 2015
* Memorandum for this Board from the applicant, dated 29 June 2015
* Two letters of support from the same person, undated
* Letter of support, undated

CONSIDERATION OF EVIDENCE:

1.  At the time of her application, the applicant was serving on active duty as a private, pay grade E-2.

2.  An SF 600, dated 30 April 2015, as provided by the applicant indicates that she was seen at the health clinic at 0730 hours, 30 April 2015.  A subsequent note entered into the medical record shows the applicant was given quarters for a period of 24 hours.  The note does not indicate when this period began or ended.

3.  A DA Form 2627 indicates that on 3 June 2015, the applicant, then a specialist, pay grade E-4, accepted NJP for being disrespectful toward a superior commissioned officer by calling him a liar, or words to that effect; and for presenting a DD Form 689 (Sick Call Slip) that was false in that it reflected 
48 hours quarters, and was known by her to be so false.  The record further shows:

	a. she did not demand trial by court-martial;

	b. she requested a closed hearing;

	c. she did not request a person to speak in her behalf;

	d. she indicated she would offer any matters in defense, extenuation, and/or mitigation in person;

	e. the 4th Special Troops Battalion (STB) Commander (imposing commander) found the applicant guilty;

	f. the imposing commander indicated in Item 4b “NA” regarding directions for filing;

	g. the punishment imposed consisted of reduction to private, pay grade 
E-2, a forfeiture of pay per month for 2 months (suspended), and extra duty for 30 days, and restriction for 60 days;

	h. the applicant appealed the NJP and submitted additional matters; and

	i. the appeal was denied on 15 June 2015 by the 4th Sustainment Brigade (SB) Commander.

4.  A review of the applicant’s Official Military Personnel file (OMPF) failed to reveal any documents related to the subject NJP.

5.  In a separate memorandum to the Board, the applicant essentially states that she did not falsify medical records and did not call a superior officer a liar.  She argues that the evidence does not support these charges.  She contends that her conversation with a commissioned officer was exaggerated.  She merely intended to point out the discrepancy in the medical notes that accompanied her file.  The note she received from the doctor was not forged.  She went to the clinic on 30 April 2015 and did not return.  The notes in her file were changed on 4 May 2015, even though the clinic records confirm she was not seen on that date.  She subsequently filed her response to the allegations, as well as an appeal upon the final determination to solve her case via NJP.  She contends that the NJP should be removed from her records because no administrative remedies were taken.  The NJP was the result of a failure on behalf of those who investigated the allegations to fully and fairly challenge the claims of wrongdoing.  There was no consideration of documentation, files, and potential witnesses who could have rebutted the claims against her.  She also believes that there may have been a violation of her procedural rights during the appeals process because the appeal was not reviewed by the imposing authority’s superior.

6.  A review of the five documents provided on behalf of the applicant from a retired lieutenant colonel, master sergeant, and two other associates of hers, has shown the applicant to be a dedicated, professional Soldier, who has the courage of character to challenge her seniors.  She was also described as a person who does not always time her challenges very well but always had the best intent.



7.  Army Regulation 27-10 (Military Justice) provides that the 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.  Furthermore:

	a. 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;

	b. the basis for any set aside action is a determination that, under all of the circumstances of the case, the punishment has resulted in a clear injustice; and

	c. in cases where administrative error results in incorrect entries on the DA Form 2627, the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment.

8.  Army Regulation 27-10 further provides that the original DA Form 2627, for Soldiers in pay grade E-4 and below prior to punishment, will be filed locally in unit NJP or unit personnel files.  Such locally filed originals will be destroyed at the end of 2 years from the date of imposition of punishment or on the Soldier’s transfer to another General Court-Martial Convening Authority (GCMCA), whichever occurs first.  For these Soldiers, the imposing commander should annotate in Item 4b of the DA Form 2627 as “Not Applicable (N/A).”

9.  Army Regulation 27-10 further provides for only one appeal under Article 15 proceedings.  The next superior authority to the commanding officer who imposed the Article 15 will act on an appeal if the Soldier punished is still under the command of that officer at the time of appeal.  If the commander has acted under a delegation of authority, the appeal will be acted on by the authority next superior to the delegating officer.  If, at the time of appeal, the Soldier is no longer of the imposing commander’s command, the authority next superior to the commander of the imposing command (who can impose the same kind and amount of punishment as that imposed or resulting from subsequent modifications) will act on the appeal.  The authority “next superior” to an imposing commander is normally the next superior in the chain-of-command, or such other authority as may be designated by competent authority as being next superior for the purposes of Article 15.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected by showing that her NJP was set aside.  She argues that she did not call an officer a liar.  She states she only said what the officer said was incorrect.
2.  The available evidence clearly shows the applicant accepted NJP for being disrespectful in language to superior commissioned officer and for falsifying a sick call slip.  The DA Form 2627 shows that the applicant agreed to undergo the NJP proceedings in lieu of demanding a court-martial.  The imposing battalion commander found her guilty of the charges and did not direct filing of the NJP in her OMPF because her pay grade was E-4.  The NJP proceedings were reviewed by the brigade judge advocate.  Furthermore, the 4th Sustainment Brigade Commander (SB) reviewed the applicant’s appeal and denied it.

3.  There is no evidence of error, injustice or illegal action in this case.  What the imposing commander and the appellant authority did was proper and authorized by the provisions of the governing regulation.

4.  There is no evidence showing that any document concerning the subject NJP is filed in the applicant’s OMPF.  Furthermore, any documents that were filed locally, should be automatically destroyed after 2 years, or upon the applicant’s reassignment to a different GCMCA, whichever occurs first.

5.  The letters of support provided on behalf of the applicant show her to be a dedicated professional soldier, they do not provide any direct evidence of error or injustice concerning the subject NJP.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20130012209



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ABCMR Record of Proceedings (cont)                                         AR20150011587



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