BOARD DATE: 13 June 2018 DOCKET NUMBER: AR20160006517 BOARD VOTE: _____x____ ____x___ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 June 2018 DOCKET NUMBER: AR20160006517 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. voiding the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) imposed on 29 August 2014, b. removing the subject DA Form 2627 from the restricted folder of her Official Military Personnel File, and c. restoring her rank to staff sergeant/E-6 with entitlement to back pay and allowances effective 29 August 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. BOARD DATE: 13 June 2018 DOCKET NUMBER: AR20160006517 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: a. removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 29 August 2014 from the restricted folder of her Official Military Personnel File (OMPF) and b. restoration of her rank to staff sergeant (SSG)/E-6. 2. The applicant states: a. This record contains a legal error in that the punishment (reduction to the rank/grade of sergeant (SGT)/E-5) was imposed by a commander who did not have the authority to reduce her from SSG/E-6 to SGT/E-5 as required in Army Regulation 27-10 (Military Justice), paragraph 3-19b. The commander who imposed the punishment was not the promotion authority. b. Due to the invalid punishment, she has endured substantial injustice. She requested review and correction of the invalid punishment from her chain of command without success. She was unable to continue her service and was denied reenlistment due to the reduction in grade. She separated after completing 11 years of honorable service. 3. The applicant provides: * letter from counsel to the Commander, 96th Military Police Battalion, dated 14 September 2015 * DA Form 2627, dated 29 August 2014 * three DA Forms 2823 (Sworn Statement) COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests: a. removal of a DA Form 2627 imposed on 29 August 2014 from the applicant's restricted folder of her OMPF and b. restoration of her rank to SSG/E-6. 2. Counsel states: a. The applicant's reduction from SSG/E-6 to SGT/E-5 was invalid due to the level of command from which it was imposed. The acting commander was not a valid reduction authority. Paragraph 3-19b(6)(a) of Army Regulation 27-10 states the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. The applicant's unit is a company-level organization. This means the commander of the 313th Military Police Detachment, the imposing commander, did not have the authority to promote the applicant and thus did not have the authority to reduce her in rank. This renders the punishment (reduction) invalid. Paragraph 3-19b(6)(d) adds that any reduction under Article 15, UCMJ, beyond the imposing commander's authority to reduce is void and must be set aside. b. Army Regulation 140-158 (Army Reserve – Enlisted Personnel Classification, Promotion, and Reduction), paragraph 7-2b, states the reduction authority for SGT and SSG are field grade commanders of an organization authorized a commander in the grade of lieutenant colonel or higher. The Army has expressed the rule specifically requiring commanders to have promotion authority to the specific grade for which they have reduction authority, even for administrative reductions. c. Due to the legal error caused by this invalid reduction, the applicant has endured substantial injustice. Beyond the obvious effects of a reduction (lower pay, reduced seniority, etc.) this action placed her career at a screeching halt. She is no longer in the U.S. Army Reserve (USAR). She was unable to reenlist due to the reduction in rank. She maintains that she did not commit the offense. It is her position that the matter was taken completely out of context and that she should have never received the punishment in the first place. Throughout her tenure as a noncommissioned officer (NCO), she has always maintained a high level of professionalism and has never maltreated her Soldiers, and did not do so in this event. d. Last year she pursued a remedy short of the Board by bringing attention to this matter to her existing chain of command, without success. Nothing was done to correct or assist the applicant to resolve the matter. On the contrary, her chain of command simply informed her that this was not their issue because the action was imposed in Afghanistan under a different command and her current chain of command refused to refer the matter to an agency that could correct the deficiency. e. For these reasons, the DA Form 2627 should be removed from the applicant's military record in its entirety. This record contains a legal error and is an injustice against her. Her rank/grade should be restored to SSG/E-6 and any rights, privileges, and property, including pay and allowances, should be restored to the applicant. This includes any administrative changes to her military personnel records. 3. Counsel provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the USAR on 1 July 2004. She was promoted to the rank/grade of SSG/E-6 effective 1 December 2013. 2. She was ordered to active duty in support of Operation Enduring Freedom effective 18 January 2014. She arrived in Afghanistan on 21 March 2014. 3. The DA Form 2627, dated 29 August 2014, shows she accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, for maltreatment of a subordinate Soldier on divers occasions in Afghanistan by referring to him as "my nigga" in front of other Soldiers. Her punishment included reduction to the rank/grade of SGT/E-5 and an oral reprimand. The imposing commander (Major J____ R. B____, Commander, 313th Military Police Detachment) directed filing the DA Form 2627 in the restricted folder of her OMPF. She elected not to appeal the imposed punishment to the next superior authority. 4. Her records contain no orders reducing her to the rank/grade of SGT/E-5. 5. Her NCO Evaluation Report for the period 22 March 2014 through 1 September 2014 shows her rank/grade as SGT/E-5. Her date of rank is shown as 29 August 2014. a. Part Iva (Army Values) shows her rater/senior rater marked the "NO" block for "Respect/Equal Opportunity (EO)/Equal Employment Opportunity (EEO)" and entered the bullet comment: "does not support SHARP [Sexual Harassment/ Assault Response and Prevention], EO, and EEO." b. Part IV (Values/NCO Responsibilities) shows her rater/senior rater marked the "Needs Improvement (Some)" block for "Leadership" and entered the bullet comments: * failed to set the example of a Noncommissioned Officer by at times conducting herself in less than professional ways * removed from duties as Squad Leader; failed to support the Army SHARP and EO policies * did not support the Army SHARP and Equal Opportunity program c. Part IV shows her rater/senior rater marked the "Needs Improvement (Some)" block for "Responsibility and Accountability" and entered the bullet comment: "displayed lack of judgment in her duties as a Noncommissioned Officer." d. Part V (Overall Performance and Potential) shows her rater/senior rater marked the "Marginal" block for "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" and entered the bullet comments: * rater relieved * does not support SHARP, EO, and EEO * requires mentorship and experience before being prepared for the next grade * displays potential as a junior NCO despite lapse in judgment * attend ALC [Advanced Leader Course] Phase 2 & 3 resident courses when available * failed to separate personal and professional relationships which created an environment in which she was ineffective e. Part V shows her rater/senior rater marked the "Fair/4" block for "Overall Performance." f. Part V shows her rater/senior rater marked the "Fair/4" block for "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility." 6. She departed Afghanistan on 14 September 2014. 7. Headquarters, Army Support Activity, Joint Base McGuire-Dix-Lakehurst, Fort Dix, Orders 267-0010, dated 24 September 2014, released her from active duty effective 20 October 2014. Her rank is shown as SGT. 8. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 20 October 2014 shows her rank as SGT. 9. Counsel issued a letter to the applicant's chain of command, dated 14 September 2015, stating the applicant's reduction in rank/grade from SSG/E-6 to SGT/E-5 was invalid due to the level of command by which it was imposed. The acting commander was not a valid reduction authority as required by regulation. Counsel requested voidance of the reduction imposed against the applicant, restoration of her rank/grade to SSG/E-6, and appropriate administrative changes to her military records. 10. The applicant provided: a. a DA Form 2823 from SGT M____ , dated 1 March 2015, attesting she had been a subordinate to the applicant since 2010. From the time she met the applicant, the applicant has been a leader who she always wanted to emulate. Her style of leadership is firm but fair. She has never seen the applicant conduct herself in a manner that is illegal, immoral, or unethical. The applicant served as the Equal Opportunity and Sexual Harassment/Assault Response and Prevention representative for the detachment. She believes that acts of reprisal were taken against the applicant for initiating an investigation involving an inappropriate relationship; b. a DA Form 2823 from SGT A____, dated 12 March 2015, attesting she had worked with the applicant since 2010. She looked up to the applicant as a role model. She believes the applicant is a great asset to the Army; and c. a DA Form 2823 from SGT C____, dated 14 March 2014 (should read 2015), attesting he does not know all the details surrounding the event, just the bits and pieces that were shared among members of the unit by those involved and the chain of command. From what he understands of the situation, the applicant used the term "nigga" in front of a small group of Soldiers. Another Soldier who heard it in passing took offense and filed a complaint, along with claiming the applicant was hardly ever professional and frequently used such language. As one of the applicant's team leaders at the time, this he knows this not to be true at all. The Soldiers filing the complaints against the applicant all had different grudges against her. These Soldiers did not like her because she was not afraid to tell the truth, be blunt with them, and hand out corrective action when needed. Although using a term someone could possibly take offense to is always risky and should be avoided, such language was used by many people in the unit and surrounding units with no one taking offense. Her use of the word "nigga" was not meant in a derogatory way and was not meant to degrade any person or race, but rather a slang word to jokingly address someone who is a friend or acquaintance the way society uses it. The individuals who claimed to take offense at the use of this word very frequently use this word. However, their words and actions are overlooked because it has become acceptable in our society to have such a double standard that allows for certain races to make jokes and call each other names, but anyone outside their race or color trying to joke around in the same way is automatically labeled a racist and the use is unacceptable. He feels the applicant's demotion was unwarranted, but he believes it helped her learn an important lesson. The applicant's punishment (reduction) was more than enough for the actions that took place in Afghanistan. He wholeheartedly disagrees with the notion that the applicant should be barred from reenlistment. The applicant is a professional and great leader. 11. Defense Finance and Accounting Service records show her rank/grade changes as follows: * SGT/E-5 from 23 July 2010 to 30 November 2013 * SSG/E-6 from 1 December 2013 to 28 August 2014 * SGT/E-5 from 29 August 2014 to 30 September 2015 12. On 30 September 2015, she was honorably discharged from the USAR in the rank of SSG/E-6. 13. Her records contain no orders promoting her to the rank/grade of SSG/E-6 subsequent to her reduction. 14. There is no evidence showing a bar to reenlistment was imposed against her. 15. Her OMPF in the interactive Personnel Electronic Records Management System (iPERMS) contains a copy of the DA Form 2627 in the restricted folder. REFERENCES: 1. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 2. Army Regulation 27-10 prescribes the policies and procedures pertaining to the administration of military justice. a. Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial. It states the decision whether to file a record of NJP in the performance folder of a Soldier's OMPF rests with the imposing commander at the time punishment is imposed. b. Paragraph 3-19b(6)(a) (Promotion Authority) states the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. For the purposes of this regulation, the imposing commander or any subordinate commander has "promotion authority" within the meaning of Article 15(b) if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade. c. Paragraph 3-19b(6)(d) (Void Reduction) states any portion of a reduction under Article 15 beyond the imposing commander's authority to reduce is void and must be set aside. Where a commander reduces a Soldier below a grade to which the commander is authorized to reduce, and if the circumstances of the case indicate the commander was authorized and intended to reduce the Soldier at least one grade, a one-grade reduction may be approved. Also, if a reduction is to a specialist grade when reduction should have been to a lower NCO grade (or vice versa), administrative action will be taken to place the offender in the proper rank for the military occupational specialty held in the reduced pay grade. All rights, privileges, and property, including pay and allowances, of which a Soldier was deprived by a reduction that has been set aside must be restored. d. Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the OMPF. It states that 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). It further indicates 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. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record (AMHRR). a. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. b. Appendix B (Documents Required for Filing in the AMHRR and/or iPERMS) shows a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 4b of the DA Form 2627). 4. Army Regulation 140-158, chapter 7 (Reductions and Restorations), paragraph 7-2 (Reduction Authority), dated 15 November 2005, stated the administrative reduction authority for Soldiers in the rank of SGT and SSG are field grade commanders of an organization authorized a commander in the grade of lieutenant colonel or higher. 5. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), effective 21 August 2006, superseded Army Regulation 140-158. 6. Army Regulation 600-8-19, effective 14 May 2010, was in effect at the time of the applicant's reduction in 2014. Table 10-1 (Reduction Authorities) stated the administrative reduction authority for Soldiers in the rank of SGT and SSG are field grade commanders of any organization authorized a lieutenant colonel or higher commander. For separate detachments or companies, the reduction authority would be the next higher headquarters within the chain of command. The higher headquarters must be authorized a commander in the grade of lieutenant colonel or higher. DISCUSSION: 1. The evidence shows the applicant accepted NJP under the provisions of Article 15, UCMJ, on 29 August 2014 for maltreatment of a subordinate Soldier. Her punishment included reduction to SGT/E-5. The imposing commander (a major commanding a detachment) directed filing the DA Form 2627 in the restricted folder of the applicant's OMPF. 2. The DA Form 2627, dated 29 August 2014, is filed in the restricted folder of her OMPF. 3. Counsel's contention the applicant never maltreated her Soldiers and did not do so in this event relates to evidentiary and legal matters that could have been addressed and conclusively adjudicated in the court-martial/appellate process. However, the applicant did not demand trial by court-martial and she did not appeal the imposed NJP to the next superior authority at the time. 4. Counsel contends the applicant's reduction from SSG/E-6 to SGT/E-5 was imposed by a commander who did not have the authority to reduce her from SSG/E-6 to SGT/E-5 as he did not have the authority to promote her. 5. Army Regulation 600-8-19 in effect at the time of the applicant's reduction in 2014 provided that the administrative reduction authority for Soldiers in the rank of SGT and SSG are field grade commanders of any organization authorized a lieutenant colonel or higher commander. For separate detachments or companies, the reduction authority would be the next higher headquarters within the chain of command. The higher headquarters must be authorized a commander in the grade of lieutenant colonel or higher. 6. The imposing commander, a major commanding a detachment, did not have the authority to reduce the applicant from SSG/E-6 to SGT/E-5 as he did not have the authority to promote her. 7. There is no evidence indicating approval of the applicant's reduction was submitted to the next higher headquarters within the chain of command authorized a commander in the grade of lieutenant colonel or higher. Without orders showing a commander of an organization authorized a lieutenant colonel or higher commander ordered her reduction in rank, it appears she was improperly reduced. 8. Army Regulation 27-10 states the grade from which reduced must be within the promotion authority of the imposing commander or of any officer subordinate to the imposing commander. Any portion of a reduction under Article 15 beyond the imposing commander's authority to reduce is void and must be set aside. All rights, privileges, and property, including pay and allowances, of which a Soldier was deprived by a reduction that has been set aside must be restored. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006517 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006517 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2