BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20160010684 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 BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20160010684 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. BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20160010684 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 the removal from his official military personnel file (OMPF) of: * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 11 February 2014 * the resultant Noncommissioned Officer Evaluation Report (NCOER) based on the same incident 2. He also requests a personal appearance before the Board. 3. The applicant states: * the matter that brings him before the Board involves an Article 15 and a subsequent NCOER both of which are based on the same incident * the Article 15 he received on 11 February 2014 was factually and legally insufficient and was mitigated by the Commanding General (CG) exactly one year after the incident took place * he diligently tried to get this one-page document uploaded numerous times through all channels up to division and recently got it submitted on 23 May 2016 * all the negative documents are based on a mere traffic ticket; the initial incident in question was "driving under the influence (DUI)"; exactly nine days later the incident was thrown out for a traffic violation 4. The applicant provides: * Response, dated 5 February 2016, to the Qualitative Management Program (QMP) Notice * Notification, dated 29 April 2016, of denial of continued active duty service under the QMP * Statement of Options * Enlisted Record Brief * Statement from his Article 15 attorney * DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ) * Two letters of support COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: The applicant listed his counsel's name; however, counsel did not make a specific request or provide any evidence. He wrote a statement of support in which he stated: a. He believes the applicant should be retained on active duty. He is a dedicated and humble servant of our country. There is no doubt in his mind that he is an invaluable asset to the Army. In his 30 years of service to this country, both in uniform and as a civilian, it is rare to meet someone as dedicated and humble as the applicant. He truly and unconditionally loves the Army. No matter what the situation, he is dedicated to the mission. He does not complain nor does he seek anything in return. He is unapologetic about his love for his unit and the Army. It is in this capacity where the applicant feels the greatest pain in acknowledging that he failed them both that night in GA. The embarrassment he feels is palpable. However, despite the consequences of that night, there is no harder working NCO before, during, or after that night. b. Despite being reduced, he continued to lead. He flawlessly led numerous, heart-wrenching burial ceremonies. He volunteered to be a "first responder" to bring Soldiers home after a night of drinking. He continued to lead at every opportunity. He was also recently identified as the second best platoon sergeant (as a SSG) within his cavalry troop. As a leader, he always puts the mission first. He (counsel) has had countless conversations with him concerning his duties. He is amazed at how he refuses to let his personal affairs interfere with his responsibilities. He is a natural and caring leader. Simply put, he takes care of his Soldiers. He keeps them informed – whether they are doing right or wrong. As such, they know where and how they can grow and develop. c. It is obvious that his senior NCOs and leadership recognize this in many ways. In typical Army fashion, "no good deed goes unpunished." As a SSG, he has been readily dispatched to take on a number of high profile missions, to include his integration as the platoon sergeant for the Stryker heavy weapons troop. These added responsibilities continue without regard for the fact that he is facing QMP. In many ways, he (counsel) is heartened by the manner in which his leadership believes that he will be ready and available for the Brigade's upcoming mission. They clearly recognize his potential and seem to expect his retention. d. In reviewing his case, he believes it is useful to note that the entire situation has now been reduced to a $4.00 fine. He questions whether this rates being separated. Throughout this time, he has witnessed first-hand how the applicant has refused to quit. Should we remove someone who cares this much about serving his country for a $4.00 fine? Additionally, it is still undetermined whether he was improperly denied a standby advisory board (STAB). His reduction in rank was used as the basis for his removal from the promotion list to E-7. Yet, the CG removed that penalty. Given that the regulatory reason was removed, how is it that he has not been allowed a STAB? This matter is pending resolution and possible appeal to the Army Board of Correction for Military Records. e. Lastly, he believes that the NCOER that was issued to him was written without the requisite facts. He also believes that it was written in such a manner as directed. An alcohol incident equates to three "NO" value blocks? He lacks the requisite attributes of Duty, Honor, and Integrity for standing up to a bully in a uniform (i.e., an "alcohol related incident”). He (counsel) is not saying that his behavior was without blemish. However, he is saying that the idea that he lacks these requisite values merely because of this incident is misplaced. These blocks are for values – not performance. He never lied about the incident. He even initiated the report to his command. There seemingly exists a belief that a “no” is required for the slightest incident involving alcohol. This improperly takes away a rater's discretion. This appears so here. Even the comments on the back of the NCOER focus on just one incident. It is difficult to believe that this one incident (since debunked) is deserving of such a rating. f. He hopes that the Board considers the outstanding service that the applicant continues to provide for this Army, and in doing so, recommends that he be retained on active duty. CONSIDERATION OF EVIDENCE: 1. The applicant's reference to a derogatory NCOER pertains to his Relief for Cause NCOER covering the rating period 1 December 2013 through 6 February 2014. His appeal of this NCOER to this Board is premature. The portion of his request that pertains to this NCOER was forwarded through the U.S. Army Human Resources Command (HRC) to the Army Enlisted Special Review board (ESRB). As a result, this issue will not be discussed further in this Record of Proceedings. 2. Having had prior service in the Regular Army (RA) and the Army National Guard, the applicant enlisted in the RA on 18 February 1999 and he holds military occupational specialty 11B (Infantryman). He has served through several reenlistments in a variety of stateside or overseas assignments, including Iraq and Afghanistan. 3. During the period in question, he was assigned as a section leader in a reconnaissance, surveillance, and target acquisition platoon in a cavalry squadron (3rd Squadron, 61st Cavalry Regiment) assigned to a light infantry brigade (4th Infantry Brigade Combat Team (IBCT)) stationed at Fort Carson, CO. 4. On 3 February 2014, he was arrested for DUI at Fort Benning, GA. He had gone to a local restaurant for dinner and a pre-Super Bowl party where his initial plan was to stay for the remainder of the night. He left the restaurant and went to a local bar where he met other Senior Leader Course (SLC) students to watch the game. An altercation occurred between the applicant and other fans. The applicant was escorted out of the bar by security and proceeded back to the restaurant. Upon arrival, he again got into an altercation with the police officer in the area. The manager asked him to leave the restaurant. He left and went to his vehicle where a police officer apprehended him for operating his vehicle. He had a blood alcohol content of .167. He was arrested for DUI. 5. On 4 February 2014, the applicant was released from the SLC for disciplinary reasons. He was issued a DA Form 1059 (Service School Academic Evaluation Report) that shows he did not achieve course standards. The DA Form 1059 is filed in the performance section of his OMPF. 6. On 5 February 2014, his company commander counseled him. The commander indicated that the applicant was charged and pleaded no contest to a DUI on 2 February 2014. He was academically dropped from the SLC and he would be considered for a field grade Article 15 for misconduct. 7. Also on 5 February 2014, his battalion commander counseled him and indicated that the manner in which he failed SLC brought great discredit upon himself, the unit, and Fort Carson. He started an altercation at an off-post establishment, ignored the guidance of a law enforcement officer, and received a DUI. This was unacceptable and completely unsatisfactory. He was removed from his position as a platoon sergeant and considered for UCMJ action. 8. On 11 February 2014, the Commander, 3rd IBCT, advised the applicant that he was considering whether he should be punished under Article 15, UCMJ. The reason is listed as violating Article 134, in that he was, at or near Fort Benning, GA, on or about 2 February 2014, drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces. 9. After having been afforded the opportunity to consult with counsel, the applicant indicated he did not demand trial by a court-martial and elected a closed Article 15 hearing. He further elected to request someone to speak on his behalf and indicated he would present matters in defense in person. 10. On 18 February 2014, he accepted NJP under the provisions of Article 15 of the UCMJ, for violating Article 134 of the UCMJ. His punishment – as indicated on the DA Form 2727 – consisted of reduction to the rank/pay grade of sergeant (SGT)/E-5 and a forfeiture of $500 pay for one month (suspended). The imposing commander directed the original DA Form 2627 be filed in the performance section of the applicant's OMPF. He elected not to appeal. 9. The Article 15 is filed in the performance section of his OMPF. The allied documents (statements, flags, serious incident report, etc.) to support this NJP are filed in the restricted portion of his OMPF. 10. On 10 February 2015, the CG, Fort Carson, ordered a supplementary action of "Mitigation." He ordered the punishment of reduction to SGT/E-5 imposed on 18 February 2014 mitigated to a forfeiture of $400 pay for one month. The DA Form 2627-2 was filed in the performance section of his OMPF on 23 May 2016. 11. It appears HRC notified the applicant that his records would be considered by the Fiscal Year 2016 QMP Board and provided him an opportunity to respond to the QMP Notice. 12. On 5 February 2016, he responded and requested retention on active duty and indicated that the Article 15 was factually and legally insufficient. It was imposed in violation of Army Regulation (AR) 27-10 (Military Justice) and the allegations were false. 13. On 29 April 2016, by memorandum, HRC notified him that the QMP Selection Board conducted a comprehensive review of his records for potential denial of continued service under the QMP and recommended he be denied continued active duty service. The Director of Military Personnel Management approved the board's recommendation and he is to be discharged no later than 1 November 2016. 14. He provides: a. Statement from his attorney, dated 16 February 2016. He states that he contacted the restaurant in Columbus, GA, and confirmed with the night manager that she had no knowledge of the applicant being told to leave or be removed and that if such action happened, she would have known. Additionally, the head of security also reiterated that neither the night manager nor any of the staff members made a request to remove the applicant. b. A character reference letter, dated 20 January 2014, from his company commander who speaks highly of the applicant's character, exceptional integrity, and outstanding military bearing. He also speaks highly of the applicant's knowledge, skills, and abilities. REFERENCES: 1. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the MCM. It provides that the 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 minor offense includes misconduct not involving any greater degree of criminality than is involved in the average offense tried by summary court-martial. It does not include misconduct of the type that, if tried by a general court-martial, could be punished by a dishonorable discharge or confinement of more than one year. a. Paragraph 3-6 addresses the filing of an NJP and provides, in pertinent part, 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. b. Paragraph 3-14 provides that the commander with the authority to impose the Article 15 must ensure the matter is investigated promptly and adequately. The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident(s). The investigation should address whether an offense was committed, if the Soldier in question was involved, and the character and military record of the Soldier. Usually investigations are informal and consist of interviews with witnesses and/or review of police or other informative reports. The commander after reviewing the evidence determines a Soldier probably has committed an offense and that NJP is appropriate, he or she can take appropriate action. c. Paragraph 3-23 (Clemency) states the imposing commander, a successor-in-command, or the next superior authority may, in accordance with the time prescribed in the Manual for Courts-Martial, (1) remit or mitigate any part or amount of the unexecuted portion of the punishment imposed; (2) mitigate reduction in grade, whether executed or unexecuted, to forfeiture of pay; (3) at any time, suspend probationally any part or amount of the unexecuted portion of the punishment imposed; and/or (4) suspend probationally a reduction in grade or forfeiture, whether or not executed. An uncollected forfeiture of pay will be considered unexecuted. d. Paragraph 3-26 (Mitigation) states mitigation is a reduction in either the quantity or quality of a punishment, for example, a punishment of correctional custody for 20 days reduced to 10 days or to restriction for 20 days. The general nature of the punishment remains the same. The first action lessens the quantity and the second lessens the quality, with both mitigated punishments remaining of the same general nature as correctional custody, that is, deprivation of liberty. However, a mitigation of 10 days of correctional custody to 14 days of restriction would not be permitted, because the quantity is increased. A forfeiture of pay may be mitigated to a lesser forfeiture of pay. A reduction may be mitigated to forfeiture of pay. When mitigating reduction to forfeiture of pay, the amount of the forfeiture imposed may not be greater than the amount that could have been imposed initially, based on the restored grade, by the officer who imposed the mitigated punishment. Mitigation is appropriate when the recipient has, by the recipient’s subsequent good conduct, merited a reduction in the severity of the punishment and/or the punishment imposed was disproportionate to the offense or the offender. e. 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 un-waived 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. f. 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. g. 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 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. 2. AR 600-8-104 (Army Military Human Resources Record (AMHRR) provides policies, operating tasks, and steps governing the AMHRR. The AMHRR is an administrative record as well as the official permanent record of military Service belonging to a Soldier and it includes 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 AMHRR and/or iPERMS. Table B-1 provides instructions regarding the filing of documents in the OMPF. The Army Personnel Records Division (APRD) updates the list of Authorized Documents for filing in the AMHRR quarterly. The new list of Authorized Documents will supersede the list in Table B-1, Appendix B of AR 600-8-104. The guidelines for filing an Article 15 are found in AR 27-10. 3. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The evidence of record confirms the commander administering the Article 15 determined the applicant committed the offense in question during a closed Article 15 hearing after considering all the available evidence. By law and regulation, before administering a Soldier an Article 15, the commander should be convinced that the Soldier committed the offense(s) for which imposition of an Article 15 is being considered. The applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing. 2. The applicant accepted the NJP and the imposing officer directed the filing in the performance section of his OMPF. This is where the Article 15 is currently filed. (The evidence to support the imposition of the Article 15 is filed in his OMPF-restricted folder.) He elected not to appeal. However, on 10 February 2015, the next higher commander ordered the punishment of reduction to SGT/E-5 imposed on 18 February 2014 mitigated to a forfeiture of $400. This did not negate the finding of guilty. It simply lessened the punishment. 3. The 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 normally 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, was given the right to demand trial by court-martial, and was afforded the opportunity to appeal the Article 15. The applicant was afforded the opportunity to appeal but he elected not do so. 4. His NJP proceedings were conducted in accordance with law and regulation and they are properly filed in the performance section of his OMPF as directed by the imposing commander. He has not demonstrated through evidence that the NJP action was unjust or untrue or that its removal would be in the best interest of the Army. 5. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160010684 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010684 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2