IN THE CASE OF: BOARD DATE: 3 MARCH 2016 DOCKET NUMBER: AR20150018637 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: 3 MARCH 2016 DOCKET NUMBER: AR20150018637 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. Enclosure 1 IN THE CASE OF: BOARD DATE: 3 MARCH 2016 DOCKET NUMBER: AR20150018637 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, the removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 30 April 2015, from the performance folder of his official military personnel file (OMPF) and restoration of his rank/grade to sergeant (SGT)/E-5. 2. The applicant states: * he would like his field-grade nonjudicial punishment (NJP) under Article 15 of the UCMJ reviewed to determine if it was just * he believes this is a case of "whistle-blower" reprisal, but was unable to prove it * he has exhausted all administrative remedies * he filed an equal opportunity (EO) complaint against a certain individual in the leadership as well as an Army inspector general (IG) complaint for immorally running two investigations at the same time * it seemed to him the NJP was reprisal for filing an EO complaint * the EO complaint was substantiated and the IG complaint was unsubstantiated * he wishes to restore his reputation and continue to serve the Army without the consequences of the undeserved imposition of field-grade NJP * he wishes to have his voice heard without the perceptions of his previous leadership affecting the Board's decision * he did not deserve to be demoted and punished for someone else's mistake and he did not deserve having the same toxic leadership prosecute him after his EO complaint came back substantiated * he wants all the facts considered before a decision is made * Lieutenant Colonel L____ charged him with intent to deceive in making an official statement to Captain (CPT) D____ * he was charged under Article 107, which clearly states that at a specific time and place, the accused made a certain official statement to a specific person or signed a specific official document * he did not sign the document and it is still unclear whether or not the individual who signed it knows if he did so based on the inaccurate timeline he provided in his sworn statement * the evidence and the charge is inaccurate and he believes the punishment was unjust * he hopes this will be addressed so he can clear his name in his new unit * he wishes to restore his rank and name in the Army * he did not falsify the document as it was not signed by him and it wasn't official until signed by him * he should not be punished for someone else's mistake * he wants all the provided evidence along with his awards and schooling to be considered * he has never done anything wrong and always graduated at the top of his class at any Noncommissioned Officer (NCO) Education System school 3. The applicant provides: * DA Form 705 (Army Physical Fitness Test Scorecard), dated 19 November 2014 * U.S. Army Trial Defense Service memorandum, dated 16 April 2015, subject: Considerations of Reasonable Doubt for SGT J____ L____'s pending Article 15 * nine character-reference statements * DA Form 2627 * 470th Military Intelligence Brigade memorandum for record, dated 24 April 2015 * DA Form 2166-8 (NCO Evaluation Report) covering the period 1 September 2014 through 22 April 2015 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 7 February 2011 and is currently serving on active duty in the rank/pay grade of specialist (SPC)/E-4. 2. On 8 September 2011, he was assigned to Alpha Company, 201st Military Intelligence Battalion. His records indicate he was promoted to the rank/grade of SGT/E-5 on 1 September 2014 and performed temporary duty with Army Forces (ARFOR) Joint Task Force (JTF)-Bravo, Soto Cano Air Base, Honduras, from 13 November 2014 through 9 January 2015, after which he returned to Alpha Company, 201st Military Intelligence Battalion. 3. A DA Form 705 shows he was administered a record Army Physical Fitness Test (APFT) on 19 November 2014 in which he received a passing score of 207, meeting the minimum score requirement in each evaluated event. The document was electronically signed by SGT B____ as the NCO in charge of administering the APFT. 4. A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) shows an investigating officer was appointed on 19 February 2015 to convene an investigation in accordance with Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) into the allegations that the applicant did not take a record APFT while assigned to ARFOR JTF-Bravo, Honduras, and that he made a false official statement regarding the APFT. 5. The investigating officer included the following documents as part of the investigation: * two DA Forms 2823 (Sworn Statement) and email correspondence from CPT D____, Commander, Alpha Company, 201st Military Intelligence Battalion * four DA Forms 705 * DA Form 2823 and email correspondence from SGT B____ who signed the DA Form 705 in question * DA Form 2823 from the applicant * email correspondence and memorandum detailing email and telephonic communication between the investigating officer and Staff Sergeant (SSG) T____ * Headquarters and Support Company, ARFOR JTF-Bravo, memorandum for record, dated 13 November 2014, subject: APFT and Weigh-In * email correspondence from First Sergeant D____ 6. An allied memorandum from the investigating officer, dated 16 March 2015, details the investigation's findings and recommendations. The memorandum, along with the sworn statements and email correspondence, shows: * the applicant's company commander, CPT D____, was reviewing APFT Scorecards on 12 February 2015 when he noticed some irregularities with the applicant's APFT * the applicant had received a record APFT Scorecard from JTF-Bravo in Honduras and submitted it to the company training room when he returned from his training with the task force * CPT D____ questioned the applicant's run time, as he had previously never been a strong runner but ran a 15:42-minute 2-mile run in Honduras where the elevation is 2,060 feet when his 2-mile run time upon his return to San Antonio, at an elevation of 650 feet, was nearly 2 minutes slower * CPT D____ then contacted the Soldier in Honduras who had signed the scorecard, SGT B____, to ask what the applicant's physical training habits were while there in an attempt to understand how this significant change occurred * SGT B____ informed CPT D____ that the applicant did not in fact take a record APFT * CPT D___ later found out that his first sergeant was the subject of an investigation initiated on the applicant's behalf, thus recused himself from further investigation to avoid a conflict * he then deferred to the battalion commander as the investigative authority and eventual administration of punishment * SGT B____ went on to state to the investigating officer that organized physical training was not regularly conducted in Honduras and he did not witness the applicant perform the APFT as indicated on the scorecard he signed, but rather asked the applicant what he scored * although the card states "RECORD APFT," it was merely a diagnostic APFT which he did not witness and agreed to sign as a "baseline" for him and his unit * SGT B____ recalls the applicant handing him a completed APFT Scorecard to sign while the applicant was out-processing from ARFOR JTF-Bravo in January 2015 * when questioned about the discrepancy between the date the scorecard was signed and emailed to the unit in the rear (19 November 2014) and the date the applicant departed the task force in January 2015, he stated he could not remember when he signed the scorecard for the applicant * SGT B____ was not aware of any witnesses who may have physically observed the applicant complete the APFT * there are no ARFOR JTF-Bravo records showing the applicant took an APFT while performing temporary duty there * ARFOR JTF-Bravo records confirm a record APFT was conducted on 20 November 2014 and the applicant was not among the Soldiers either scheduled to take the test or those who took the test * ARFOR JTF-Bravo Headquarters and Support Company conducted monthly APFTs for Soldiers due for a test, but it was the home unit's responsibility to ensure Soldiers arrived with a current APFT Scorecard * JTF-Bravo's chain of command was not aware the applicant took an APFT and did not inform his home unit that he took one * according to the applicant's sworn statement, he needed a record APFT for reenlistment * he took the APFT during lunch on 19 November 2014 * SSG T____ was the NCO in charge and SGT B____ was the grader of the test * he submitted the DA Form 705 to his unit orderly room via email on the same day * he did not hand a DA Form 705 to SGT B____ to sign during his out-processing * SSG T____ stated he did not recall administering an APFT for the applicant at any time on 19 November 2014 * based on all the evidence, the investigating officer found the applicant did not take a record APFT while assigned to JTF-Bravo in Honduras and made a false official statement by filling out his own APFT Scorecard with false scores * the investigating officer determined the evidence showed the applicant knew the statements to be false at the time, which further provided him motive to fabricate a false sworn statement to conceal the fact, and he made the false statements with the intent to deceive * he recommended the applicant receive NJP or trial by court-martial under Article 107 of the UCMJ and immediate suspension of his access to classified information * he also recommended sharing the results of the investigation with the ARFOR JTF-Bravo Headquarters and Support Company Commander for the purpose of giving SGT B____ a negative counseling for falsifying an APFT Scorecard 7. On 15 April 2015, the Commander, 201st Military Intelligence Battalion, advised the applicant that he was considering whether he should be punished under Article 15, UCMJ, for the following misconduct: he made an official statement to CPT D____ with the intent to deceive at or near Soto Cano Air Base, Honduras, on or about 19 November 2014, to wit: that he took a record APFT, which statement is totally false and was then known by him to be false, in violation of Article 107, UCMJ. 8. On 21 April 2015 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 indicated he requested someone to speak on his behalf and he would present matters in defense in person. 9. The applicant provided multiple memoranda, all dated between 16 April 2015 and 23 April 2015, which were presumably submitted in his defense for consideration at the Article 15 proceedings. Eight character witnesses (peers of the applicant) attest to his professionalism, integrity, excellent work ethic, and their assessment that the accusations leveled against him were very out of character for him. A memorandum from his retention NCO, SSG S____, states the applicant contacted her the morning of 19 November 2015 regarding taking an APFT for reenlistment purposes while performing temporary duty in Honduras in lieu of waiting for his return to the unit in the rear at Fort Sam Houston. None of these individuals claimed to have witnessed the applicant take the APFT. A memorandum from the U.S. Army Trial Defense Service Fort Sam Houston Field Office Senior Defense Counsel, dated 16 April 2015, raises what he sees as considerations of reasonable doubt regarding the Article 15 charges: * SGT B____ twice stated he digitally signed the DA Form 705 while the applicant was out-processing and shortly before he left Honduras on 9 January 2015 * the document was digitally signed by SGT B____ on 19 November 2014 * it is reasonable to assume that since SGT B____ forgot when he signed the card that he also forgot he in fact administered the APFT * he wonders what purpose SGT B____ would have had to sign something that he was not present for or required to sign, as it was not a record APFT * the incident transpired approximately 3 months prior to SGT B____ or SSG T____ being questioned and it is possible that both NCOs forgot they administered the test * SGT B____ claimed the APFT was invalid, since an SGT/E-5 could not administer a record APFT to another SGT/E-5 * nonetheless, SGT B____'s digital signature is on the document and the words "RECORD APFT" must have been on the document prior to his signature, since the underlying computer program does not allow for a change to the document after it has been digitally signed * SSG S____ received the DA Form 705 on 19 November 2014, the same day she and the applicant exchanged email about the requirement for reenlisting * SSG T____ answered one email stating he did not recall administering the APFT on that date, which is not the same as stating that something absolutely did not happen * the evidence against the applicant is not strong and, while it may be indicative of bad recordkeeping, it does not establish the required threshold of proof that he did not take the APFT on that day 10. On 22 April 2015, he was found guilty of all specifications. The punishment imposed included reduction to the rank/grade of SPC/E-4; forfeiture of $1,175.00 pay, suspended, to be automatically remitted if not vacated before 21 July 2015; and extra duty for 14 days. The 201st Military Intelligence Battalion Commander directed filing the DA Form 2627 in the performance folder of his OMPF. He was advised of his right to appeal to the next superior authority, the Commander, Headquarters, 470th Military Intelligence Brigade. The applicant initialed the block indicating he wished to appeal without submitting additional matters. 11. On 23 April 2015, a judge advocate of the 470th Military Intelligence Brigade reviewed the proceedings for legal sufficiency and found they were conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportionate to the offense committed. 12. On 30 April 2015 after reviewing all matters presented in appeal, the next higher commander, Colonel C____, Commander, 470th Military Intelligence Brigade, denied the appeal. The applicant acknowledged seeing the action taken on his appeal with his signature on the same date. 13. The DA Form 2627 was filed in the performance folder of his OMPF. 14. The applicant claims his NJP was retaliatory in nature and the direct result of an EO complaint he filed. He makes reference to both a substantiated EO complaint as well as an unsubstantiated IG complaint, but neither complaint nor the resulting reports from either complaint was supplied or is in his available records for review. REFERENCES: 1. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to administration of military justice and implements the Manual for Courts-Martial. 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. Paragraph 3-6 addresses filing NJP and provides that a commander's decision whether to file a record of NJP in the performance folder 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 folder. 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 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 DA Form 2627 will be sent to the appropriate custodian for filing in the OMPF. The decision to file the original DA Form 2627 in the performance folder or restricted folder 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. d. Paragraph 3-43 contains guidance for transfer or removal of DA Forms 2627 from the OMPF. It states Enlisted Soldiers in the ranks of SGT and above, and commissioned officers may request the transfer of a record of NJP from the performance section of their OMPF to the restricted section by petitioning the DA Suitability Evaluation Board. Applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) provides policies, operating tasks, and steps governing the OMPF. The OMPF is an administrative record as well as the official permanent record of military service belonging to a Soldier. Appendix B-1 (Required Document List) is a compilation of all forms and documents which have been approved by Department of the Army for filing in the OMPF and/or Interactive Personnel Electronic Records Management System (iPERMS). Appendix B-1 also provides instructions regarding filing documents in the OMPF. 3. The Army Personnel Records Division updates the list of authorized documents for filing in the OMPF quarterly. The latest update, dated 15 December 2015, provides additional instructions regarding filing NJP under Article 15 of the UCMJ. For all Soldiers other than E-4 and below, 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 folder or the restricted folder in 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 any superior authority. However, the superior authority cannot direct filing an Article 15 in the performance folder if the imposing commander directed filing in the restricted folder. The imposing commander's filing decision will be indicated in item 4b of the DA Form 2627. A change in the filing decision should be recorded in item 8 of the DA Form 2627. DISCUSSION: 1. The applicant's request for removal of the DA Form 2627, dated 30 April 2015, from the performance folder of his OMPF and restoration of his rank/grade to SGT/E-5 was carefully considered. 2. An Army Regulation 15-6 investigation found the applicant made false statements about his APFT Scorecard, knew the false statements to be false at the time, and made the false statements with the intent to deceive. The investigating officer recommended NJP or trial by courts-martial. 3. His battalion commander reviewed all the evidence presented in the Article 15 proceedings and found the applicant guilty of all specifications. He directed filing the DA Form 2627 in the performance folder of his OMPF; reduction to the rank/grade of SPC/E-4; forfeiture of $1,175.00 pay, suspended, to be automatically remitted if not vacated before 21 July 2015; and extra duty for 14 days. 4. The proceedings were reviewed by a judge advocate who found they were conducted in accordance with law and regulation and that the punishments imposed were not unjust or disproportionate to the offense committed. 5. The applicant was afforded the right to appeal the determination, which he did, and the decision was upheld by his brigade commander upon appeal. 6. The applicant was appropriately reduced in rank to SPC and a copy of the DA Form 2627 was appropriately filed in the performance folder of his OMPF in keeping with regulatory guidance. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150018637 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150018637 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2