BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150012950


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 his military records by removing his record of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) from his Official Military Personnel File (OMPF); restoring his rank to staff sergeant (SSG)/E-6 with all back pay and allowances; and advancing him to sergeant first class (SFC)/E-7.

2.  The applicant states, in effect:

a. On 9 December 2013, he was found guilty and punished under Article 15
for failing to obey a lawful general order by wrongfully permitting a female junior Soldier to enter his living space.  He was subsequently reduced in rank and grade.

b. His Article 15 was legally insufficient; the process did not adhere to 
regulatory guidelines.

c. The punishment imposed was far harsher than warranted by the infraction 
and was not in keeping with the guidance of Army Regulation 27-10 (Military Justice), paragraphs 3-2 and 3-3. 

d. The Article 15 does not appear in any official record. 

e. In November 2013, he was serving as the night shift battle captain in 
Afghanistan.  He was told that he had a few days to move from his current quarters (scheduled for demolition) to a new set of quarters.  He requested the assistance of a junior female Soldier, who was also part of the night shift.  She agreed to assist after their shift ended on the following day.

f. In broad daylight, with all of the doors to the two sets of quarters open, 
and in full view of many passing senior noncommissioned officers (NCO’s), warrant officers, and commissioned officers from their unit, they moved him into his new quarters.

g. Unbeknownst to him, a young Soldier, who the applicant believed liked the
female Soldier who was assisting him, told his first sergeant (1SG)/E-8 that she was in the applicant’s room and that he heard inappropriate noises coming from within.

h. An investigation commenced pursuant to Army Regulation 15-6 
(Procedures for Investigating Officers and Boards of Officers).  Although there were many witnesses to support him, the command decided to begin a Field Grade Article 15 process for violating General Order 1 for having a female in his quarters.

i. Neither he nor the female Soldier were provided with complete Article 15
packets.  The female Soldier’s attorney raised the issue with the command but her appeal was denied.

j. His attorney advised him not to pursue the same course of action in favor 
of his strategy to challenge the decision based on a violation of his due process rights at a later date.

k. After he was found guilty at the Article 15 hearing, he challenged the
Punishment after returning to Fort Campbell, KY by filing an Inspector General (IG) complaint.  However, the IG did not substantiate his claim. 
 
3.  The applicant provides:

* DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) dated 
13 December 2013
* Memorandum regarding a nonjudicial punishment (NJP) appeal on behalf of K____ K. U_____ (female Soldier), dated 18 December 2013 
* Memorandum from defense counsel regarding his NJP
* DA Form 2823 (Sworn Statement)
* DA Form 2142 (Pay Inquiry) dated 19 September 2014)
* Enlisted Record Brief
* DA Forms 2166-8 (NCO Evaluation) 
* Certificate of Recognition
* Order Number 337-02
* Joint Meritorious Unit Citation
* Meritorious Unit Commendation Certificate
* Joint Service Commendation Medal Certificate
* Army Commendation Medal Certificate
* DA Form 638 (Recommendation for Award)
* Certificates of Achievement
* DA Forms 1059 (Service School Academic Evaluation Report)
* Certificates of Training

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving in the Regular Army as a sergeant (SGT)/E-5.

2.  On 13 December 2013, the applicant, then a SSG/E-6, accepted field-grade NJP for violation of Article 92 (failure to obey a lawful order or regulation) by allowing a female Soldier into his quarters without authorization.  The NJP further shows:

* he did not demand trial by court-martial
* he requested a closed hearing

3.  On 13 December 2013, the imposing commander found the applicant guilty of the charge and directed the DA Form 2627 be filed in the restricted section of his OMPF.  The following punishment was imposed:

* Reduction to SGT/E-5
* Forfeiture of $1,532.00 pay per month for one month (suspended, if not vacated before 11 June 2014)

4.  The applicant did not appeal his punishment.  

5.  A review of the applicant's OMPF failed to find any documentation of the subject NJP or any related documents.  

6.  The applicant provides a copy of his NJP and the appeal from the female Soldier’s counsel who contends that the Article 15 was not legally sufficient and that it did not adhere to regulatory guidelines.  Specifically, that they were not given copies of all the documents that were used against them at the NJP.  However, the appeal was denied.  Furthermore, the applicant submitted an IG complaint but states it was found to be unsubstantiated. 

7.  The applicant also provides copies of awards he received to support his contention that he was a good Soldier and that his punishment was not in keeping with the provisions of Army Regulation 27-10, and was far more harsh and destructive than his minor infraction would warrant. 

8.  Under the UCMJ, the maximum punishments allowed for violation of Article 92 include a dishonorable or bad conduct discharge.

9.  Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, MCM (Manual for Courts-Martial).  Paragraph 3-18(1) provides that before finding a Soldier guilty, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense.  Paragraph 
3-28 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 is 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. 

10.  Paragraph 3-37b(1)(a) of Army Regulation 27-10 states, in pertinent part, that the decision whether to file a record of NJP in the restricted section of the Soldier's OMPF rests with the imposing commander at the time punishment is imposed.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further indicates that there must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the DA Form 2627 in question from his OMPF because the NJP was unjust and to reinstate his rank of SSG/E-6 has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  Notwithstanding the applicant's rationalization, the imposing authority found he willfully disobeyed a lawful order and the maximum punishment includes a dishonorable or bad conduct discharge if tried by court-martial.

3.  By regulation, 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 is 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.

4.  The evidence the applicant provides confirms his Article 15 processing was accomplished in accordance with the applicable law and regulation and that the imposing commander determined beyond a reasonable doubt that the applicant was guilty of the charged offense.  There is no evidence of record or independent evidence provided by the applicant that would call into question the validity of this decision by the imposing commander.

5.  The applicant had the right to decline NJP and request court-martial, he was represented by counsel, and he did not appeal his NJP punishment.

6.  The governing regulation requires that there must be evidence the document is untrue or unjust in whole or in part in order for the ABCMR to support removal of a properly completed, facially-valid DA Form 2627 from a Soldier's record.  In any case, there is no NJP documentation to remove from the applicant’s OMPF, restricted or otherwise. 

7.  Absent evidence of an error or injustice in the Article 15 processing or the appellate process, the regulatory burden of proof necessary to set aside the Article 15 or to remove it from the applicant's OMPF has not been satisfied in this case.  As a result, there is an insufficient evidentiary basis to support removal of the Article 15 from the applicant's OMPF, reinstatement of his rank to SSG/E-6, or advancement to SFC/E-7.

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)                                         AR20120008325



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150012950



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1