BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20150005399 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: AR20150005399 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: AR20150005399 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 correction of his record by setting aside his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 19 December 2013. 2. The applicant also requests placement on the retired list in the rank/grade of staff sergeant (SSG)/E-6; if this is not possible he requests placement on the retired list in the rank/grade of sergeant (SGT)/E-5. 3. The applicant states: a. Nonjudicial punishment (NJP) may not be imposed for an offense committed more than 2 years after the date of the offense. b. He accepted NJP about 2 years and 14 days after the offense was committed. His punishment occurred beyond the statute of limitations set forth in the Manual for Courts Martial (MCM), Article 43(B)(1) and Army Regulation 27-10 (Military Justice), paragraph 3-12 (Statute of Limitations). c. The Article 15 charges were not feasible due to the time and locations of the alleged offenses. The DA Form 2627 has multiple discrepancies to include the dates that the offenses occurred and the location of the offenses. He was not in Kuwait on the alleged date (11 January 2013); he re-deployed to Fort Hood, TX more than 6 months prior to that date. d. Legal counsel at Fort Hood Trial Defense Service informed his battalion commander, brigade legal officer, and company commander of the contradiction regarding the dates and locations of the offenses. Counsel stated the specifications of violation of Article 107 under the UCMJ were incorrect and constituted a substantial legal error that must result in a finding of "Not Guilty." His personal statement corroborated the actual dates and locations he committed the offenses on 5 December 2011 (when he was in Kuwait). The presiding officer disregarded this information. He received NJP on 19 December 2013. e. He appealed the Article 15 and the battalion command sergeant major (CSM) prohibited him from signing in block 15 [sic] block 5 of the DA Form 2627, which gives a Soldier the option to appeal. Other officials told him that he would be subject to and recommended for a court-martial or an increase in punishment if he appealed the Article 15. He later learned this information was incorrect. f. He changed his mind regarding an appeal. He researched the appeal process and contacted a military attorney who informed him that the Article 15 was unjust in accordance with Army Regulation 27-10, paragraph 3-12. He later discovered the CSM gave him false advice based on Army Regulation 27-10. He discovered that punishment would not have increase after the imposition of NJP. g. He hired a military attorney to request the Article 15 be set aside in accordance with Army Regulation 27-10, paragraph 3-28. h. In June 2014, his platoon sergeant told him to report to the brigade commander. The brigade commander treated the matter like an appeal instead of a request to wholly set aside punishment based on Army Regulation 27-10, paragraph 3-28. The commander asked him if he committed the offense and he responded, "Yes I did." The commander stated that the statute of limitations was just a technicality and he would not change anything. The commander filled out the DA Form 2627-1 (Summarized Record of Proceedings under Article 15, UCMJ) as if the applicant requested an appeal instead of the procedure to wholly set aside the punishment. At this point, he exhausted all of his avenues to resolve the injustice without assistance from the Army Board for Correction of Military Records. i. The applicant believes he should be placed on the retired list as a SSG because of his promotable status at the time he received the Article 15. He claims this would have subsequently resulted in his promotion to SSG at the time of his medical retirement or sooner if he had made the cut-off points for promotion. If the Board cannot grant this request then he requests placement on the retired list in the rank of sergeant (SGT)/E-5, which is the highest grade he satisfactorily held during the period 1 October 2009 through 19 December 2012. j. If this information does not satisfy the Board, he would like the members to consider that he was in the primary zone for promotion to SGT with adequate points to attain the cut-off score requirements for that grade at the time of medical retirement. However, the promotion board did not review his packet in the primary zone. He did not receive counseling on the reason the promotion board did not consider him in primary zone. k. Additionally, his company commander did not place him on the command integration list at the appropriate time. His company first sergeant informed him that this was because he was in the Integrated Disability Evaluation System process. The Army Grade Determination Board (AGDRB) did not consider his case. 4. The applicant provides: * Two Memoranda, Subject: Promotion Board Proceedings for Promotion to SGT and SSG, from the Promotion Board President, both are dated 5 February 2013 * DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 20 November 2012 through 19 November 2013 * Memorandum, Subject: Legal Defense in Regards to Article 15 Process for SGT [applicant], dated 18 December 2013 * DA Form 2627, dated 19 December 2013 * Memorandum, Subject: Article 15 Wholly Set Aside Request for Specialist (SPC)/E-4 [applicant], dated 12 June 2014 * Memorandum for Record, Subject: Detailed Events for 5 December 2011, dated 12 June 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 November 2014 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 6 July 2007 and he continued to serve on active duty through a series of reenlistments. 2. His Enlisted Record Brief (ERB) contains the following information: a. Section I (Assignment Information) shows he served in Iraq from 2 July to 31 December 2011 and in Kuwait from 1 January to 2 July 2012. b. Section III (Service Data) shows his date of rank to SGT as 1 October 2009. 3. He provided a memorandum from the Promotion Board President, Headquarters, 1st Special Troops Battalion, 1st Brigade Combat Team, 1st Cavalry Division, Fort Hood, TX, dated 5 February 2013. This memorandum shows the board recommended the applicant for promotion list integration to the rank of SSG in military occupational special 56M (Chaplain Assistant). 4. He provided a copy of his DA Form 2166-8 (NCOER) for the rating period 20 November 2012 through 19 November 2013. This report shows he was assigned to Headquarters and Headquarters Troop, 1st Brigade Combat Team, Fort Hood, TX during the rated period. His rating officials evaluated him as "Among the Best" and Successful/block 1 and Superior/block-1 with a senior rater comment of "promote immediately to staff sergeant." 5. He provided a memorandum, dated 18 December 2013, from his defense counsel who stated he counseled the applicant on his rights and the processes under the UCMJ. Counsel stated he found that a legal defense existed for the three specifications of violation of Article 107 (making false official statements) under the UCMJ. The dates in the Article 15 specifications one through three were incorrect. The alleged crime did not happen in January 2013 and July 2013. Counsel argued that this was a substantial legal error, which must result in a finding of "Not Guilty" for these three specifications. 6. He provided a DA Form 2627, which shows: a. On 19 December 2013, while serving in the rank/pay grade of SGT/E-5, he accepted NJP under Article 15 for the following offenses: (1) signing a false official record, to wit/on or about: * Permanent Order Number 011-005, at or near Camp Buehring, Kuwait, 11 January 2013 * Permanent Order Number 184-01, at or near Fort Hood, TX, 2 July 2013 * Permanent Order Number 184-02, at or near Fort Hood, TX, 11 January 2013 (2) wrongfully and without authority, wearing upon his uniform the insignia of the Combat Action Badge, on or between 1 and 30 November 2013 b. In item 3 (Having been afforded the opportunity to consult with counsel and understanding my rights listed above and on page three of this form, my decisions are as follows) the applicant initialed "I do not demand trial by court-martial; I request the hearing be closed; A person to speak in my behalf is requested; and matters in defense, extenuation, and/or mitigation are not presented." c. In item 4a (In a Closed hearing, having considered all matters presented, I hereby make the following finding), the commander initialed "Guilty of All Specifications." d. The commander directed the DA Form 2627 be filed in the restricted section of his OMPF. The applicant initialed the block indicating, "I do not appeal." Block 10 (Allied Documents and/or Comments) of his DA Form 2627 lists the: * Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) * Enlisted Record Brief * Suspension of Favorable Personnel Actions (Flag) e. He was advised of his rights under the Article 15 proceeding. While in a closed hearing, he declined a trial by a court-martial. He signed and dated the Article 15 on 19 December 2013. The imposing commander found him guilty of all specifications and he accepted NJP under the provisions of Article 15. f. His punishment consisted of a reduction to SPC/E-4 and extra duty for 28 days. The imposing commander directed filing of the Article 15 in the restricted section of the applicant's OMPF. He elected not to appeal the punishment. g. The DA Form 2627 and all allied documents were filed in the restricted section of the applicant's OMPF. 7. His ERB shows his date of rank to SPC as 19 December 2013. 8. He provided a 12 June 2014 memorandum through his attorney requesting the Article 15 be set aside. Counsel stated he concurred with the legal analysis previously submitted in the 18 December 2013 memorandum. Counsel expressed that although the applicant admitted to forging the documents, he did not inform commanding officials of the actual date he committed the offense. According to Army Regulation 27-10, paragraph 3-12 "NJP may not be imposed for offenses which were committed more than 2 years before the date of imposition." Since the forgery happened more than 2 years before the date of imposition, counsel and the applicant both request the Article 15 be wholly set aside. a. The applicant wanted to appeal the Article 15, but his Battalion CSM told him that he should not appeal the Article 15 because his company commander wanted to court-martial him for the charges. However, the applicant later discovered this was incorrect based on Army Regulation 27-10, paragraph 3-10. b. Counsel suggested consideration of other issues if the Article 15 is not set aside. Counsel points out that the applicant made three requests to the battalion S-1 and orderly room for the Combat Action Badge and the applicant's diagnoses of depression and referral to group therapy at behavior health in November 2013. Counsel also referred to the applicant's diagnosis of post-traumatic stress disorder (PTSD), dysthymic disorder, occasional impulsive behavior, PTSD, a mild traumatic brain injury, and his further need for mental health treatment. c. Counsel further states, the applicant believed his mental condition caused him to commit the forgery. The applicant did not know how to cope with the stress of his deployment, his immediate command team not supporting him, and his constant stressor of going unrecognized for the immediate danger he experienced. 9. In a 12 June 2014 Memorandum for Record, the applicant admitted that he forged a Combat Action Badge, Drivers Badge-Wheeled Vehicle Badge, and Drivers Badge-Track Vehicle Badge on 5 December 2011. He stated he "forward dated" the Combat Action Badge for 11 January 2012 and the Drivers Badge for 2 July 2012. He believed these were the dates that documents were uploaded to the Interactive Personnel Electronic Records Management System. 10. On 16 June 2014, a Medical Evaluation Board (MEB) evaluated him and referred him to a Physical Evaluation Board (PEB). On 29 August 2014, a PEB found the MEB diagnoses of lumbar degenerative disc disease with L4-5 neuroforaminal stenosis and bilateral radiculopathy were unfitting. The PEB recommended a 50 percent disability rating and a permanent physical disability retirement. The proceedings show his rank as "SPC." 11. On 2 July 2014, a legal authority determined the applicant's NJP appeal was legally sufficient; however, the brigade commander denied the appeal. 12. Orders 275-0137, published by Headquarters, Third Corps and Fort Hood, TX on 2 October 2014 released him from assignment and duty on 29 November 2014 because of physical disability. On the following date, he was placed on the retired list in the rank/pay grade of SPC/E-4. He completed 7 years, 4 months, and 24 days of active military service. 13. His DD Form 214 shows his rank/pay grade as "SPC/E-4" was effective 19 December 2013. REFERENCES: 1. MCM, section 843, Article 43(b)(1) (Statute of limitations) states "Except as otherwise provided in this section (article), a person charged with an offense is not liable to be tried by court-martial if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court-martial jurisdiction over the command." 2. Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice and implements the MCM. a. Chapter 3 states NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ. The NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted. b. Paragraph 3-2 (Use of NJP) states NJP may be imposed to correct, educate, and reform offenders whom 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; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627. c. Paragraph 3-12 states NJP may not be imposed for offenses, which were committed more than 2 years before the date of imposition. Computation of this 2-year limitation is in accordance with the UCMJ, Articles 43(c) and (d). The period of limitations does not run when the Soldier concerned is absent without authority; fleeing from justice; outside the territory where the United States has authority to apprehend; in the custody of civil authorities; or, in the hands of the enemy. d. Paragraph 3-28 provides that 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. (1) 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 UCMJ, Article 15. In addition, the imposing commander or successor in command may set aside some or all of the findings in a particular case. If all findings are set aside, then the UCMJ, Article 15 itself is set aside and removed from the Soldier’s records. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the UCMJ, Article 15 or 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. Clear injustice does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier. (2) Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. (3) In cases where administrative error results in incorrect entries on a DA Form 2627 or DA Form 2627–1 the appropriate remedy generally is an administrative correction of the form and not a setting aside of the punishment. (4) The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within 4 months after the punishment has been executed. When a commander sets aside any portion of the punishment, the commander will record the basis for this action on DA Form 2627–2 (see para 3–38b, below). When a commander sets aside any portion of the punishment after 4 months from the date punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set-aside action. e. Paragraph 3-37b(2) states that for all other Soldiers, 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. 3. Title 10, U.S. Code, section 1372, states that unless entitled to a higher retired grade under some other provision of law, any member of an Armed Force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list (TDRL) under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: a. The grade or rank in which he is serving on the date when his name is placed on the TDRL or, if his name was not carried on that list, on the date when he is retired. b. The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the Armed Force from which he is retired. c. The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination. d. The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination. 4. Army Regulation 15-80 (AGDRB) and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB. Most grade determinations do not require action by the AGDRB, or the exercise of discretion by other authorities, because they are automatic grade determinations that result from the operation of law and this regulation. a. A grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay. Although a lower grade determination may affect an individual adversely, it is not punitive. b. Paragraph 2-5 outlines grade determination considerations. It states that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade was expressly for prejudice or cause; owing to misconduct; caused by NJP pursuant to Article 15 of the UCMJ; or the result of the sentence of a court-martial. It also states that service will be considered unsatisfactory if there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory. 5. MCM, Article 43 (Statute of Limitations) states, except as otherwise provided in this section (article), a person charged with an offense is not liable to be tried by court-martial if the offense was committed more than five years before the receipt of sworn charges and specifications by an officer exercising summary court- martial jurisdiction over the command. DISCUSSION: 1. The evidence of record shows the applicant accepted NJP under the provisions of Article 15 on 19 December 2013 for signing a false official record on 11 January and 2 July 2013 and for wrongfully wearing upon his uniform the insignia of the Combat Action Badge, on or between 1 and 30 November 2013. 2. The applicant argues that his commander imposed the DA Form 2627 outside the statute of limitations as specified by the regulation; therefore, it should be "wholly set aside." 3. In accordance with Army Regulation 27-10, paragraph 3-12, NJP may not be imposed for offenses committed more than 2 years before the date of imposition. 4. The applicant admitted that he forged the documents in question on 5 December 2011. The evidence of record shows he had the right to demand trial by court-martial and the opportunity to appeal the Article 15 through the proper channels. The applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing. While the applicant exercised his right to appeal, 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, or that his rights were violated in any way. 5. Further, the applicant's decision to waive his right to trial by court-martial effectively waived the statute of limitations issue before the NJP imposing authority. The statute of limitations, before a court-martial for offenses the applicant acknowledges having committed, is five years per Article 43, UCMJ. Had he demanded trial of court-martial, he would have simply exposed himself to more potential punishment with the government merely amending the dates of the offenses. 6. The imposing commander considered all matters presented and determined that the applicant was "Guilty of All Specifications." Based on Army Regulation 27-10, punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s). 7. His NJP proceedings were conducted in accordance with law and regulation and his DA Form 2627 is properly filed in the restricted section of his OMPF as directed by the imposing commander. There is no evidence of record and he has not provided any evidence to show the DA Form 2627 is untrue or unjust. In order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust. 8. The applicant's punishment consisted of reduction to SPC/E-4 and extra duty for 28 days. Based on the available evidence, it appears the imposing commander determined the applicant committed the offenses and imposed the appropriate punishment authorized under his jurisdiction. 9. The applicant provided a 5 February 2013 memorandum that shows he was considered and recommended for promotion to SSG/E-6 in MOS 56M on 5 February 2013. His service record is void of evidence that indicates he was promoted to SSG/E-6 prior to the NJP. 10. The applicant was reduced from SGT/E-5 to SPC/E-4 because of the NJP on 19 December 2013. 11. Orders were published that show the applicant was medically retired on 29 November 2014 and placed on the retired list in the rank of SPC/E-4. 12. Army Regulation 15-80 provides that service in a higher grade will normally be considered unsatisfactory if reversion to the lower grade is the result of an NJP pursuant to Article 15, UCMJ. Accordingly, his service in the rank of SGT/ E-5 was unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005399 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005399 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2