IN THE CASE OF: BOARD DATE: 24 November 2015 DOCKET NUMBER: AR20150015095 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: The applicant defers his request, statement, and evidence to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's earlier request to, in effect, remove a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 2 December 2013, and associated documents from the applicant's official military personnel file (OMPF). 2. Counsel states: a. A summary of the circumstances surrounding the incident which led to the nonjudicial punishment shown on the DA Form 2627 dated 2 December 2013. b. Reiterates the arguments in the applicant's initial application wherein he asserted there were material factual errors and a misuse of command discretion, thus causing a material injustice affecting the applicant's career. However, he offers new evidence so as to bolster his earlier arguments. 3. Counsel provides: * sworn statement by Staff Sergeant (SSG) CT, one of the noncommissioned officers (NCO) accusing the applicant of misconduct * DA Form 4856 (Developmental Counseling Form), dated 4 October 2013, issued to the applicant by SSG TWB, Section Sergeant (another of the NCOs who accused the applicant of misconduct) * DA Form 268 (Report to Suspend Favorable Personnel Action (FLAG)) * The contested DA Form 2627 showing the imposing commander's action * Article 15 Punishment Worksheet * Request for Article 15 and Supplementary Action, signed and undated, requesting a Field Grade Article 15 be administered against the applicant * memorandum, dated 16 December 2013, written by the applicant's military counsel, addressed to the Commander, U.S. Army Garrison (USAG) Bavaria, Germany, subject: Appeal to Field Grade Article 15 [applicant] * memorandum, dated 16 December 2013, written by the applicant, addressed to the Commander, USAG Bavaria, subject: 27 September and 1 October (2013) Uniform Corrections, in accordance with Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia) * memorandum, dated 18 April 2014, written by the applicant's current counsel, subject: Non-Judicial Punishment Clemency Request * memorandum for Record, dated 6 May 2014, issued by the Commander, USAG Bavaria, essentially denying the applicant's request for clemency * DD Form 149, dated 22 June 2014, submitted with the applicant's initial application for relief * Record of Proceedings for AR 20140012499, dated 2 September 2014, with associated documents * three sworn statements by eye-witnesses and a statement by the paralegal from the applicant's higher headquarters * email correspondence written between the applicant, Captain (CPT) MD, Plans Officer, Joint Multinational Training Command, and CPT STB, former Trial Counsel for USAG Bavaria CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140012499, on 2 September 2014. 2. The applicant, through counsel, offers new evidence, in the form of four sworn statements and email correspondence. This new evidence warrants consideration by the Board. 3. Having had prior service, the applicant's records show he enlisted in the Regular Army on 29 June 2004 and that he holds military occupational specialty 19D (Cavalry Scout). 4. He has served through a reenlistment and an extension in a variety of stateside and overseas assignments, including multiple tours in Korea. He was promoted to sergeant (SGT)/E-5 on 1 February 2008. 5. He received multiple awards and decorations and completed various training courses. He was also issued multiple letters of recommendation or achievement. Furthermore, his NCO Evaluation Reports reflected "Among the Best" ratings by his rater and "Successful/Superior" ratings by his senior rater. 6. At the time of his incident, he was assigned to Troop A, 1st Squadron, 91st Cavalry Regiment, 173rd Airborne Brigade Combat Team, Germany. 7. His OMPF contains the following relevant documents: a. A sworn statement by SSG CT, signed on 3 October 2013, which states, in effect: * the morning of 27 September 2013, following the Army Physical Fitness Test, he observed the applicant walking with his right back pocket unbuttoned; when he corrected the applicant, he replied, "Ah-huh" * as they continued to walk in the same direction, he noticed the applicant had not buttoned his pocket, so he asked if the applicant heard him; the applicant acknowledged his pocket was unbuttoned but refused to button it * after additional attempts to address this with the applicant, the writer told him they would handle this at work; the applicant replied "What are you making such a big deal for? It's a pocket..." * the writer told the applicant it was no longer about buttoning a pocket, rather the issue was compliance with regulations and orders; if the applicant could not comply with orders and regulations he did not belong in the Army * the applicant replied "Oh, is that right? Oh, OK, I got it... whatever" * later that day after lunch, he again saw the applicant's pocket still was not buttoned; when the writer tried once more to correct the applicant, the applicant replied “he was not going to button his pocket and needed to be left alone about it” b. DA Form 4856, dated 4 October 2013, issued to the applicant by SSG TWB, Section Sergeant. This counseling statement addressed what was identified as a pattern of behavior wherein the applicant did not obey instructions and chose to be insubordinate to superiors. (1) In the first incident, the applicant failed to follow instructions and in the implied view of the writer, thought his judgment supplanted that of his superiors. The specified task, as part of a land navigation course, was to reach an identified point, dismount, and lead his team to find certain dismounted locations, while bringing all protective personal equipment and weapons. He also was required to camouflage his vehicle when he dismounted. He chose instead to leave the vehicle uncamouflaged and have one member of his team stay back to guard personal protective equipment and weapons while he and his team searched to find the land navigation points. (2) Also included in this counseling statement was the incident involving SSG CT where the applicant refused to button his uniform. (3) With regard to the removal of a nametape from his pants pocket, it states the following: * on the morning of 1 October 2013, First Sergeant (1SG) M saw the applicant had a nametape inappropriately sewn on his uniform pants pocket; he addressed this with Sergeant First Class (SFC) JAK, who, in turn, directed the writer (SSG TWB) to have the applicant remove the nametape * the writer instructed the applicant to remove the nametape, at which point the applicant began to debate the matter * the writer asked if the applicant would remove the nametape, the applicant said he would but, in effect, could not at that moment because he might rip his pants * 1SG M noticed the nametape still had not been removed, so he again addressed this with SFC JAK, who then went to the applicant and directed him to remove the nametape * with reluctance and a look of annoyance, the applicant removed the nametape from his pants * after removing the nametape, the applicant chose to confront SFC JAK as to his interpretation of Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia); the applicant was reprimanded on the spot for his combative and insubordinate behavior * the writer noted the applicant was unable to accept he was wrong and he disrespected SFC JAK by shrugging his shoulders and rolling his eyes c. In his response to this Developmental Counseling Form the applicant noted that he agreed with the counseling. He wrote that he accepted full responsibility for his actions on 1 October 2013. He added any perceived disrespect toward SFC JAK was completely unintentional and that he did not roll his eyes at SFC JAK. 8. On 12 December 2013, at a closed hearing, the applicant declined trial by a court-martial. He was found guilty of and accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for three violations of Article 91 (Insubordinate conduct toward an NCO), UCMJ: * on 29 September 2013, willfully disobeying a lawful order from SSG CT to fasten a button on his uniform * on 1 October 2013, willfully disobeying a lawful order from SSG TWB to remove a nametape sewn on his Army Combat Uniform pants * on 1 October 2013, being disrespectful in deportment toward SFC JAK by shrugging his shoulders and rolling his eyes 9. His punishment consisted of a reduction to specialist (SPC)/E-4, a forfeiture of $1,201 pay (suspended), and 35 days of extra duty. The imposing officer ordered the Article 15 filed in the performance section of the applicant's OMPF. 10. On 14 December 2013, through his defense counsel, the applicant appealed his punishment to the next higher commander. a. His argument was based on the premise that the issues were simple disagreements between NCOs in handling minor infractions and that these issues should not have been raised to a Field Grade Article 15. b. Additionally, the applicant provided a memorandum, dated 16 December 2013, subject: 27 September and 1 October (2013) Uniform Corrections, IAW AR 670-1. He affirmed that he had been given uniform corrections by NCOs assigned to Troop A, 1st Squadron, 91st Cavalry Regiment. * with regard to the order from SSG CT, the applicant was asked twice if he intended to button his pocket and the applicant replied he did not; upon a third inquiry; however, he buttoned his pocket * on 1 October 2013, he was told by SSG TWB that SFC JAK wanted him to remove a nametape sewn above his right rear trouser pocket; it was a leftover from when he was a student at the Special Forces Qualification Course * at no time did he debate with SSG TWB, he simply stated that he would absolutely comply but could not until after training because they were leaving and he did not want to rip his trousers * a few minutes later, SFC JAK told him to immediately remove the nametape and it was cut off with a knife from another Soldier * he respectfully approached SFC JAK and stated Army Regulation 670-1 did not specifically state nametapes could not be sewn on trousers; the counseling statement portrays all of the events as being more dramatic than they actually were * he stood at parade rest and at no time was combative or insubordinate; he responded to SFC JAK with "roger, Sergeant" * SFC JAK accused him of "zoning out while being reprimanded" * at no time did he shrug his shoulders or roll his eyes at SFC JAK * in September he was distracted because of difficult life issues; his father was terminally ill, and his mother frequently called him and was very upset; he had a couple of bad days and his mind was unclear * the applicant took full responsibility for his actions and poor judgment in not addressing uniform deficiencies immediately; additionally he should not have questioned a senior NCO 11. After reviewing the applicant's case and finding the proceedings were conducted in accordance with law and regulation, the Commander, USAG Bavaria, denied his appeal on 23 December 2013. The applicant acknowledged notification of this denial on 9 January 2014. 12. On 18 April 2014, through counsel, the applicant submitted a request for clemency to the Commander, USAG Bavaria. a. Counsel offered three bases for this request: (1) The NJP was factually inaccurate, counsel offered three sworn statements which gave a different version of events. (2) Counsel contended that there had been punishment disparity within the applicant's unit, the applicant's statement recounted nine instances where he contended his unit was inconsistent in the application of punishments and discipline. (3) The applicant's noncommissioned officer evaluation reports and Army career, up to that point, showed he had strong qualities as a Soldier and leader. b. On 23 April 2014, Lieutenant Colonel (LTC) KAR, the applicant's squadron commander and the officer who imposed the contested NJP provided input to the Commander, USAG Bavaria. He recommended no change, in effect stating: * the lack of discipline for minor corrections was indicative of other challenges * the punishment administered to the applicant was carefully considered * NCOs do not act like the applicant did when senior NCOs make a correction * NCOs do not challenge what, for the squadron commander, equated to the "very being of our Army"; NCOs simply make the correction c. On 6 May 2014, the Commander, USAG Bavaria denied the applicant's appeal after reviewing those matters submitted by the applicant's counsel. He stated he found nothing that warranted either overturning the NJP or clemency. 13. A review of his OMPF reveals the contested DA Form 2627 is filed in the performance section of his OMPF. Associated documents (under the title Article 15 Allied Document) are filed in the restricted folder of the OMPF. 14. The applicant provides: a. Sworn statement by (Corporal) CPL LJH, signed on 14 January 2015, essentially states: * on the morning of 1 October 2013, Troop A was conducting pre-mission preparations for a training exercise * members of the unit were located behind the Troop building * he was standing on the loading dock when he suddenly heard a very tense and aggressive conversation * SFC JAK approached the applicant on the loading dock with regard to the applicant's wearing of a name tag on his pants pocket * he recalls very clearly that he was standing within three meters of the applicant and he was positioned so that he could see the applicant from the side (able to see both the applicant's front and back); he was also able to see the applicant's facial expressions * most of the audience to this incident were junior enlisted Soldiers; SFC JAK did not take the applicant aside * SFC JAK's tirade was very unprofessional and demeaning; he demanded the applicant remove the name tag from his trousers * the applicant responded professionally, immediately assuming the position of parade rest * he distinctly remembers SFC JAK yelling "don't shrug your shoulders and roll your eyes at me!" * from where he was standing he clearly saw the applicant did not shrug his shoulders, roll his eyes, or use any disrespectful body language * SFC JAK continued to severely reprimand the applicant with junior enlisted Soldiers present the entire time * SFC JAK's behavior during the confrontation was very unprofessional and it directly undermined the applicant's ability to lead because it occurred in front of his Soldiers b. Sworn statement by SGT DJF, signed on 8 January 2015, which states, in effect: * on the morning of 1 October 2013, most of the Soldiers were located at the rear of the Troop building and the loading dock * he was standing on the loading dock facing the rear of the building when he heard a commotion * he saw the applicant being lectured by SFC JAK * SFC JAK's back was to the writer and 1SG M stood nearby; the applicant was facing the writer and was standing at parade rest * SFC JAK was lecturing the applicant concerning a nametape that was removed from the applicant's trousers; he was very agitated and hostile * he heard SFC JAK say "don't shrug your shoulders and roll your eyes at me!" * he was close enough to clearly see the applicant did not shrug his shoulders or roll his eyes at SFC JAK * he heard the applicant say "Sergeant, I did not shrug my shoulders or roll my eyes" * the applicant was respectful and used proper military courtesy the entire time when he addressed SFC JAK; he heard the applicant's responses when SFC JAK was yelling, saying "Roger, Sergeant" and "Yes, Sergeant" c. Sworn Statement by CPL WRP, signed on 29 April 2015, which states, in summary: * Troop A was preparing to go to the field the morning of 1 October 2013; he was standing on the left side of the loading dock facing the rear of the building when he heard yelling * he looked ten feet to his right and saw SFC JAK scolding the applicant; SFC JAK made no attempt to address the applicant in private * the applicant was facing the writer, standing at parade rest; SFC JAK had his back to the writer and 1SG M was standing close by with his back to the incident * SFC JAK was extremely agitated and hostile * he was berating the applicant for a nametape that was removed from his (the applicant's) trousers * he distinctly remembers SFC JAK scream "don't shrug your shoulders and roll your eyes at me!" * the applicant remained stoic at parade rest and calmly replied "Sergeant, I did not shrug my shoulders or roll my eyes" * at no time did he see the applicant shrug his shoulders or roll his eyes * the applicant remained absolutely composed and showed SFC JAK total military courtesy during the entire situation * every response the applicant had to SFC JAK's tirade was "Yes, Sergeant" and "Roger, Sergeant" d. Sworn statement by SPC AJT, signed on 29 April 2015, which essentially states: * he served as a military justice paralegal at the USAG Bavaria from June 2013 to August 2014 (a period of 14 months) * he was involved in the administrative processing of the applicant's Field Grade Article 15 * the applicant was charged with three violations of Article 91, UCMJ * CPT STB was the trial counsel on this case; initially the NJP contained only one charge, being disrespectful through deportment * the unit insisted on adding the two additional charges despite recommendations to the contrary from CPT STB, who based this advice on his view these charges were weak and subject to being easily contested in a court-martial * the charges concerning the nametape being placed on the pocket were added to satisfy the unit even though the unsworn statement by SSG TWB and the sworn statement by SSG CT did not rise to the level of evidence normally used for a Field Grade Article 15 * during his time as a paralegal, he has never seen any other NJP imposed for charges of such menial caliber; the punishment imposed was completely disproportionate to the charges * proper imposition of NJP by a command is done after other means and resources which are available to address the situation have been exhausted * additionally, a commander should use non-punitive measures to the fullest extent possible to further the efficiency of the command before resorting to NJP * the applicant's unit did not pursue either of these courses of action with regard to the applicant's minor infractions * CPT STB questioned why such extreme measures were being used, but the command insisted on the immediate imposition of this Field Grade Article 15 * "it is common knowledge that the 1-91 CAV had a completely inconsistent disciplinary philosophy" * at one point, the unit's supporting Judge Advocate General's office maintained an "anticipation tracker" which was used to monitor those potential cases that could result in NJP or court-martial * this practice was stopped; however, after the command failed to take appropriate action on cases involving adultery, aggravated assault, conduct unbecoming, being drunk on duty, driving under the influence, fraternization, gross insubordination, negligent discharge of live ammunition, and vandalism * the applicant's case was not considered in the context of a consistent disciplinary philosophy and, in the writer's view, it was questionable whether a standard of proof was met e. Email correspondence between the applicant, CPT MD, Plans Officer, Joint Multinational Training Command, and CPT STB, former Trial Counsel for USAG Bavaria. Based upon the applicant's request, CPT MD contacted CPT STB, who essentially provided the following: * he affirmed he was the trial counsel for the applicant's case * he did not remember all of the details, but did recall it involved a nametape violation and some other minor offenses * he also remembers thinking the case was excessive and had some legal issues of proof * he honestly did not remember what advice he gave the applicant's unit, but he trusts SPC AJT's recollection; SPC AJT was a phenomenal Soldier who always did the right thing * SPC AJT's version of what occurred sounds exactly like what he would have advised had he seen an Article 15 packet from a unit that he believed was excessive or had legal/factual errors * he probably would have asked SPC AJT to tell the unit to fix the packet, but he does not recall the final outcome in the applicant's case 15. 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. 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 filing of 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 3-37b(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. c. Paragraph 3-43 contains guidance on the transfer or removal of DA Forms 2627 from the OMPF. It states that 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. 16. Army Regulation 600-8-104 (Army Military Human Resource Record Management) provides policies, operating tasks, and steps governing the OMPF. Table B-1 is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or the interactive Personnel Electronic Records Management System. Table B-1 states the Article 15, UCMJ, is filed in either the "Performance" or "Restricted" folder as directed by item 4b or 5 of the DA Form 2627. DISCUSSION AND CONCLUSIONS: 1. Through counsel, the applicant requests reconsideration of his previous request to remove a DA Form 2627 and associated documents from his OMPF. 2. Counsel bases his argument, in part, on the assertion that the commander got his facts wrong. a. Although he suggests the factual error extends to all three charges, he only presents evidence and arguments related to one charge, that of the applicant shrugging his shoulders and rolling his eyes at SFC JAK. By implication, the remaining two charges of disobeying the orders of SSG CT and SSG TWB, respectively, appear to be acknowledged as having been correctly charged. Given that two of the charges/offenses would still be sufficient to justify the imposition of the NJP. b. With regard to the charge of being disrespectful toward SFC JAK, even accepting the alternate versions as being more accurate, the evidence still indicates the applicant's deportment toward SFC JAK was disrespectful. * according to the counseling statement by SSG TWB, and as acknowledged by the applicant's agreement with that counseling, the applicant responded to SFC JAK's order with reluctance and a look of annoyance * after removing the nametape, the applicant chose to confront SFC JAK as to his interpretation of the uniform regulation * the statements make particular mention of the fact that junior enlisted Soldiers were present when SFC JAK confronted the applicant; it is worth noting, however, it was the applicant who chose to have this confrontation in front of an audience which included his subordinates when he elected to question SFC JAK's order in their presence 3. Counsel contends the commander inappropriately disposed of the allegations against the applicant with a field grade - level NJP rather than using other non-punitive measures. By doing so, he misused his command discretion. a. Counsel further suggests this action was part of a pattern demonstrated by the unit and indicative of the unit's tendency to treat their Soldiers inequitably. This contention is solely based on the opinion of a former military paralegal who served at the supporting legal office for the unit's higher headquarters. Counsel offers no other supporting evidence, such as Inspector General reports or investigations conducted under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) which might further corroborate that such a pattern existed. (1) The military paralegal's opinion is worth noting as, for a period of 14 months, he served in a position that would have enabled him to see what actions were taken with regard to indiscipline within the applicant's unit. His statement offers no details, however, and relies upon the questionable assertion that the unit's purported pattern of mishandling indiscipline was "common knowledge." He then concludes by opining the applicant's case was not considered in the context of a consistent disciplinary philosophy and based on questionable evidence. (2) Absent other supporting evidence the evidence offered by the military paralegal amounts to anecdotal evidence that insufficiently draws a connection between the unit's purported pattern and the applicant's case. b. Counsel contends the incidents charged were minor in nature and did not warrant a Field Grade NJP. The evidence indicates that the issue was not the minor infractions listed on the NJP, rather it was the applicant's apparent pattern of disrespect and an unwillingness to acknowledge when he was wrong. As noted by the imposing officer, the applicant's behavior was not at all consistent with that expected of an NCO. 4. Based upon the foregoing, counsel does not appear to have provided sufficient evidence to support the removal of the NJP and related documents from the OMPF. 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 to amend the decision of the ABCMR set forth in Docket Number AR20140012499, dated 2 September 2014 _______ _ _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) AR20150015095 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150015095 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1