IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150011667 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150011667 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150011667 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, setting aside the punishment imposed under Article 15, Uniform Code of Military Justice (UCMJ) on 12 August 2013, and restoration of his rank/grade of sergeant (SGT)/E-5. 2. The applicant states: a. While serving on active duty, he attended the E-6 promotion board. After passing the board, he was informed that one of his certificates seemed odd and an investigation would be required. During the Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation, he cooperated fully and provided statements in his own behalf. He was punished under Article 15 of the UCMJ for violating Article 107 and Article 123 by falsifying a signature and giving false statement. The investigation did not prove he was guilty of either charge. He provided proof that provided an explanation of what happened. He was reduced to the rank of E-4 and given a field grade punishment. b. He provided statements from the school that there was no definitive proof of his attendance and that there might have been an error in the certificate issuing that would explain what happened. This statement and several character statements that were provided were not included in the official file even though he was told they would be. He was under toxic leadership that was looking for any excuse to deny his promotion and have him removed from service. He is not the only one that received this treatment. Several others were removed because of the infamous toxic leadership in that particular organization. He has spoken to several officers who read all of the evidence including his statements and said the punishment was too harsh and that he should have at least retained his rank since denial for promotion would mean a denial of reenlistment as he was close to his separation date and maximum time in grade. 3. In a letter through his Member of Congress, the applicant also states: a. He was in the military and his career was cut short by rampant toxic leadership. He contacted the Inspector General on post several times, but they told him every time that his claim did not have enough support. He was targeted by his seniors after he wrote an opinion to the Army Times. After that, he was receiving counseling statements for infractions that others were allowed to skate by with. If he sneezed in the wrong direction, he received a counseling. He was punished under Article 15 for something that he could not prove he did not do, and they could not prove that he did. Before he was assigned to this unit, his career was stellar. He was a top notch professional Soldier. After he received this assignment, one thing would lead to another and just snowball and the next thing he knew, he was portrayed as horrible, hard to work with, etc. He had requested an assignment to another unit, but was told, "we don't ship our problem Soldiers to other units." b. He was reduced from E-5 to E-4 and he exceeded his time in grade/time in service and was let go at the end of his contract. He had served for 16 years and had deployed 3 times. He had to join the reserves so that he could keep serving in hopes that he could receive retirement when he turned 60 (if he would have stayed active, he would have received benefits immediately upon retirement). He needed that retirement more for his family than for himself. His children have autism and the care they received under TRICARE Prime has been nothing short of miraculous. Since he has been in the U.S. Army Reserve (USAR) under their TRICARE Plan, his children are constantly denied services and equipment that they would have received under TRICARE Prime. c. He was punished unfairly, and what happened has followed him. It has affected him psychologically. He feels nothing but depression when he puts on the uniform with the rank he now has. Every time a senior person calls him "specialist," he shivers with anger. This happened to him due to toxic leadership. After he left active service, the unit received several complaints and eventually was investigated and it was determined that the problem was the leadership in charge. There is no recourse for Soldiers like him whose career was cut short by people that outranked him. He saw several Soldiers released because of minor issues that could have been corrected with proper guidance and leadership, but it was far easier for them to just get rid of what they deemed "problem children." d. At this point, he cannot go back to active duty, which haunts him daily. All he is asking for is for his rank back. Several of his previous commanders that he spoke with agreed that the punishment he received was too harsh even if he had been guilty. He spent the majority of his career called Sergeant, and he misses it. As a sergeant, he solved problems. As a specialist, he is treated like someone who just enlisted. He earned his stripes. 4. The applicant provides: * Congressional correspondence * Notification of Suspension of Favorable Personnel Actions * Memorandum of Appointment of Investigating Officer (IO) * IO's Findings and Recommendations * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) and allied documents, sworn statements, and other evidence * Legal Review of AR 15-6 investigation * Contested Article 15 * Statement from Staff Sergeant (SSG) John B---- * Statement from Ashley C---- * Statement from Mr. Mark Bo---- CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 12 August 1997 and he held military occupational specialties 92Y (Unit Supply Specialist) and 91A (M-1 Abrams tank System Maintainer). 2. He served through multiple reenlistments in a variety of stateside or overseas assignments, including multiple tours in Iraq, and he was promoted to SGT/E-5 on 1 March 2004. 3. On 6 March 2005, at Fort Lewis, WA, he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order, failing to go at the time prescribed to his appointed place of duty on four separate occasions, and dereliction in the performance pf his duties. His punishment consisted of a suspended forfeiture of pay and extra duty. The imposing officer ordered this Article 15 be filed in the restricted section of his official military personnel file (OMPF). 4. During September 2005, he received a substandard Noncommissioned Officer Evaluation Report (NCOER) wherein his rater rated his competence and leadership as "Needs (Some) Improvement" and his overall performance as "Marginal." His senior rater rated his overall performance and overall potential as "Fair 4/4." 5. During June 2013, at Fort Carson, CO, he appeared before the Staff Sergeant (SSG)/E-6 Enlisted Promotion Board for the 2nd Battalion, 4th General Support Aviation at Fort Carson. With his promotion packet, he submitted a certificate of training showing completion of Combatives Level 1 training, worth 4 promotion points. 6. On 24 June 2013, an IO was appointed pursuant to AR 15-6 to investigate the facts and circumstances of the allegation that the applicant fraudulently submitted documents to increase his promotion points. Meanwhile, his commander suspended his promotion status pending the results of the investigation. 7. The IO found the applicant's Combatives certificate to be fraudulent based on the Fort Carson fight house not recognizing the certificate in addition to the two officer's signatures on the certificate being those of individuals not in the Army at the time the certificate was claimed to be issued. The IO recommended the applicant receive an Article 15 for falsifying a government document. 8. On 29 July 2013, a military attorney reviewed the AR 15-6 and found it legally sufficient. The attorney found no legal objection to the findings and recommendations of the investigation conducted by the IO. The investigation was conducted in accordance with AR 15-6. Specifically, it is determined that the IO was properly appointed and was not biased and the IO thoroughly and impartially ascertained and considered all evidence. The evidence supports the findings and conclusions of the IO and the recommendations are consistent with those findings. There were no errors prejudicing any individual's substantial rights. 9. On 12 August 2013, the applicant's battalion commander notified him of his intent to consider whether he should be punished under Article 15, UCMJ, for misconduct. After consulting with counsel, he declined trial by a court-martial, requested a closed hearing, requested having a person speak in his behalf, and elected to present matters in defense, extenuation and/or mitigation. 10. On 19 August 2013, at a closed hearing, he received non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ for: * making an official statement, with intent to deceive, which was totally false and was then known by him to be false * falsely signing two officers' signatures, with intent to defraud, to obtain credit for Combatives Course Skill Level 1 11. His punishment consisted of a reduction to SPC/E-4 and extra duty for 30 days. The imposing commander ordered the Article 15 filed in the performance section of his OMPF. On the same date, he appealed his punishment. 12. On 28 August 2013, a military attorney opined the proceedings were conducted in accordance with law and regulation and the punishments imposed were neither unjust nor disappropriate to the offense committed. On 5 September 2013, after consideration of all matters presented in his appeal, his brigade commander denied the appeal. 13. During September 2013, he received a change of rater NCOER that rated him a "No" in the "Integrity" and "Honor" values. His rater rated his competence, leadership, and responsibility and accountability as "Needs (Much) Improvement" and his overall performance as "Marginal." His senior rater rated his overall performance and overall potential as "Poor 5/5." 14. He was honorably discharged from active duty on 23 October 2013. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 16 years, 2 months, and 12 days of net active service his period. 15. Prior to his discharge from active duty, he enlisted in the U.S. Army Reserve (USAR) on 16 October 2013 for 3 years. He was promoted to SGT/E-5 in the USAR on 1 February 2016. 16. He submitted: a. A statement from SSG John Br---, a friend and former co-worker of the applicant. He stated that they were stationed together at Fort Lewis, WA from 2006 - 2010 while he was assigned as the supply NCO of 334th Signal Company and at 3-2 SBCT S-4. He worked with the applicant during his time at 334th Signal Company and while assigned to HHC Brigade, 3-2 SBCT. For as long as he knew the applicant, he has always been an NCO of character and competence. He always did his duty and never specifically sought out recognition for achievements he most certainly earned. He recalls an incident a few months after he arrived to the unit and had spent all of his time setting up his supply office that he inherited from the previous Supply NCO. The command pointed out some areas where more attention was needed, and rather than point out everything he had done and how far the office had come in a few months under his leadership, he simply agreed that he would strive to do better. Another incident on a more personal note that more closely describes the type of man occurred in 2008. His family was struggling to make ends meet due to unforeseen bills and a family emergency. One weekend, there was a knock at his door and the applicant was there with a box of food that he had picked up to help him get by between pay. These incidents showed him the type of person he is, not to mention his outstanding mentorship of the Soldiers he had during the time he knew him. It is very hard for him to believe that he would forge anything much less a certificate of training that he is aware could be tracked. b. A Statement from Ms. Ashley Cl----. She stated that the applicant was her supply sergeant from 2006 to 2007 at 334th Signal Company. When he came to their unit in 2006, they were all very grateful to have him. He was a welcomed change to their previous supply NCO, not only because of his work ethic, but due to the fact that he had real interest in developing and mentoring his Soldiers. He was an exemplary NCO, and taught her what it meant to be a Solider. He instilled the Army values into her, as well as her fellow junior enlisted Soldiers. She will never forget lessons that he instilled into her. He is one of the best NCOs she has ever met and she is thankful to have been privileged enough to have worked with him. c. A Statement from Mr. Mark Bo--. He stated that his personal experience with the applicant lasted roughly from the end of 2005 to the beginning of 2008 while he was enlisted as a Signal Support System Specialist. During that time frame, he knew him as the supply sergeant for 334th Signal Support Company in the 3rd Stryker Brigade Combat Team, 2nd Infantry Division. They deployed to Iraq in 2006-2007 as a company and he remained their supply sergeant through its entirety. He was always the first person to take care of his supply needs. He was surprised at the dedication the applicant had towards ensuring he was ready to deploy with equipment that fit correctly. The applicant continuously worked with their first sergeant to get the proper sized sleeping bag ordered, the correct fitting boots, and always handled his concerns in a sincere manner. He never had any doubt that his fellow Soldiers and himself would be well-equipped to fight in the war. Outside of his supply duties, he was a model for the remedial physical training (PT) program in Iraq. He led a program throughout their deployment that ensured he passed his run with no issues. After participating in his excellent PT program, he (the author) successfully passed his run time. Without his program, he would have continued to struggle, and certainly would have been denied promotion to E-4. He continuously motivated him and fellow Soldiers to push through their PT difficulties with great success, as he recalls every Soldier not having a serious profile on his program were successful in passing their PT tests. He was a leader, a battle buddy, and a friend throughout their time working with him in the 334th Signal Company. Often he was the foundation of their company that helped the Soldiers with transportation, chow, ceremonies, and maintenance. He was always the first to lighten the mood with humor to keep moral high in times when moral should have been at its lowest. He is pleased to have served with him and cannot possibly include all the positive things about him in a single letter. REFERENCES: Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It provides that a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial: a. Paragraph 3-6 addresses the filing of an NJP and provides 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 ranks of SGT 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. d. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 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 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: 1. The evidence of record confirms, following a formal AR 15-6 investigation that confirmed the applicant's actions, the commander administering the Article 15 proceedings determined the applicant committed the offenses in question during a closed Article 15 hearing after considering all the evidence submitted. By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offenses. 2. The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing. The imposing commander found him guilty and the resultant punishment consisted of his reduction to E-4. He appealed his punishment and the higher commander acted on his appeal. His NJP proceedings were conducted in accordance with law and regulation. There is no evidence of record and the applicant provides insufficient evidence to show that the DA Form 2627 is untrue or unjust. 3. The Army Board for Correction of Military Records (ABCMR) does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ. This is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence. The applicant was provided a defense attorney, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels. 4. He did not provide convincing evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings. 5. 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 is no evidence of injustice in his case. 6. There is no evidence in the record and he provides none to show he was promoted back to SGT/E-5 between the date of his reduction on 19 August 2013 and the date of his discharge on 23 October 2013. He was properly discharged in the rank/grade of SPC/E-4. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011667 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011667 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2