IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20160009511 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: 16 August 2016 DOCKET NUMBER: AR20160009511 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. IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20160009511 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 punishment imposed at a 2 October 2013 nonjudicial punishment (NJP) conducted under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) be set aside and that his rank and forfeiture be restored. 2. The applicant states the punishment was imposed under a delegation of authority so his appeal should have been acted upon by the next delegated superior officer at his rear location. His appeal should have been transmitted to the division commander and not to the brigade commander who was deployed to Afghanistan. 3. The applicant provides copies of ? * Memorandum, dated 22 February 2013 * DA Form 2627 (Record of Proceedings under Article 15, UCMJ) * E-mail string dated 19 October 2013, 31 October, 6 November, and 15 November 2013 * Memorandum on Legal Issues, dated 24 April 2014 * Request for Set Aside, dated 2 March 2015 * Extracts (Paragraph 3-28 and 3-30) from Army Regulation 27-10 (Military Justice) CONSIDERATION OF EVIDENCE: 1. On 22 February 2013, Lieutenant Colonel Lee T O____ announced in a Memorandum for Distribution that, effective 26 February 2013, he was assuming command of the 4th Infantry Brigade Combat Team (Rear Detachment). The Distribution list included the 703rd Brigade Support Battalion (BSB). 2. The applicant was a Regular Army staff sergeant assigned to the Rear Detachment, 703rd BSB, 4th Infantry Brigade Combat Team, 3rd Infantry Division. He was investigated and accepted NJP for submitting a bogus travel claim for a permanent change of station move from Fort Lee, Virginia to Fort Stewart, Georgia. [The applicant had loaded concrete blocks into the rental vehicle he was using for his Do-it-Yourself move.] This activity was observed by the Army Criminal Investigation Division (CID) because of an anonymous tip; the complete investigation followed. He then presented a weight ticket to receive advanced payment for that move. 3. On 23 September 2013 the applicant was informed that the Rear Detachment Commander, 4th Infantry Brigade 3rd Infantry Division, was considering imposing NJP for one specification of submitting a false official statement in violation of Article 107, UCMJ, one specification of submitting a false claim in violation of Article 132, UCMJ, and one specification of stealing more than $500.00 in U.S. property in violation of Article 132, UCMJ. All three offenses occurred on 10 July 2013. He was informed of his rights, including the right to consult with counsel before making any other decision, to submit evidence and present witnesses in his own behalf and the right to demand trial by court martial. 4. The applicant requested a closed hearing, indicated that someone to speak in his own behalf was not requested and that he would present matters in defense, extenuation and/or mitigation. 5. His defense counsel, a U.S. Army Judge Advocate General's Corps captain, argued in a 30 September 2013 memorandum to the rear detachment commander that: a. The making a false official statement and submitting a false claim were really represented only a single act and that he should not be found guilty of both. b. The applicant was under a great deal or stress and this caused him to make a decision that was out of character. c. The applicant's household goods actually weighed more than the concrete so he received less money than he would have if he had actually weighed his household goods. 6. On 2 October 2013 the rear detachment commander found him guilty of both charges and imposed punishment in the form of reduction to pay grade E-5 and forfeiture of $1532.00 per month for 2 months. One month of the forfeiture was suspended and automatically remitted if not vacated by 31 March 2014. The commander directed the record of NJP be filed in the performance portion of the applicant's Official Military Personnel File. 7. The Staff Judge Advocate considered the appeal and opined that the proceedings were conducted according to regulation and that the punishment was not disproportionate to the misconduct. 8. On 8 October 2013 the brigade commander considered the appeal and dismissed the offense of making a false official statement. 9. In a 28 April 2014 Memorandum for the Record the applicant's original defense counsel contended that: a. Army Regulation 27-10, paragraph 330(a) provision that the NJP appeal authority would be next superior in the chain of command requires that the Commander, 3rd Infantry Division should have been the appeal authority rather than the Commander, 4th Infantry Brigade Combat Team. b, She had raised the issue with the Rear Detachment SJA at the time and ask for any documents establishing the Rear Detachment that would show the brigade commander retained jurisdiction as the NJP appeal authority. The mail exchange shows that there were no such documents. c. She reported that, according to the 3rd Infantry Division Military Justice Noncommissioned Officer in Charge, all other brigades were processing all other brigades processed appeals through the Division rather than the deployed brigade commanders. d. She concluded that, absent supporting documentation to show otherwise, the applicant's appeal was handled wrongly. 10. In a 3 March 2015 Memorandum for the 4th Infantry Brigade Combat Team the Senior Defense Counsel, U.S. Army Garrison 3d Infantry Division and Fort Stewart, Georgia requested that the applicant's punishment be set aside because the original appeal had been handled incorrectly and he had been denied due process. He noted that the assigned defense attorney had requested documentation justifying the action of the brigade commander as the appeal authority and learned that none existed. He also repeated the applicant's claim that someone had promised him that he would be allowed to address the brigade commander face-to-face via closed circuit television. The applicant claimed that, had he been allowed an audience with the appeal authority, he not only would have told his side of the NJP story, he would also have rebutted information in the CID report about former offenses of assault and possession of a false identification card. The Senior Defense counsel argued that the time limit on set asides should be excused because the applicant had appealed to the Army Board for the Correction of Records. REFERENCES: Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 states that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member'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 fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence and may consider any matter, including un-sworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander. Chapter 3 further provides at: Paragraph 3–28. Setting aside and restoration a. 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. Nonjudicial punishment 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. 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 of promotion potential of the Soldier. b. Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. c. In cases where administrative error results in incorrect entries on 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. d. 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 according to notes 11 and 12, DA Form 2627; notes 9 and 10, DA Form 2627–1; or DA Form 2627–2 (see para 3–38b). 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. 3–30. Who may act on an appeal a. The next superior authority to the commanding officer who imposed the Article 15 will act on an appeal if the Soldier punished is still of the command of that officer at the time of appeal. If the commander has acted under a delegation of authority, the appeal will be acted on by the authority next superior to the delegating officer. If, at the time of appeal, the Soldier is no longer of the imposing commander’s command, the authority next superior to the commander of the imposing command (who can impose the same kind and amount of punishment as that imposed or resulting from subsequent modifications) will act on the appeal. b. The authority “next superior” to an imposing commander is normally the next superior in the chain-of-command, or such other authority as may be designated by competent authority as being next superior for the purposes of Article 15. A superior authority who exercises GCM jurisdiction, or is a general officer in command, may delegate those powers the superior authority has as superior authority under Article 15(e), UCMJ, to a commissioned officer of the superior authority’s command subject to the limitations in paragraph 3–7c. Regardless of the grade of the imposing commander, TJAG is delegated the authority next superior for acting on appeals when no intermediate superior authority is reasonably available. Such appeals will be forwarded to Criminal Law Division, ATTN: DAJA–CL, Office of The Judge Advocate General, HQDA, 1777 North Kent Street, Rosslyn, VA 22209–2194. DISCUSSION: 1. The applicant requests that his NJP punishment be set aside and his rights and property restored. 2. The NJP was imposed in compliance with applicable laws, regulations and policies. The punishment imposed was neither unjust nor disproportionate to the offense. 3. The applicant and counsel contend that the appeal was mishandled and that his due process rights were thereby denied. They further claim that the lack of documentation specifying the chain of appeal authority that was used in the applicant's case demonstrates that it was improper. 4. There was no documentation addressing the chain of NJP appeal because none was necessary. The rear detachment was a part of the brigade and the brigade commander was the appeal authority. The fact that he acted upon the applicant's appeal demonstrates this to be the case. 5. The brigade commander could designate an appeal authority but there is no evidence he did so. There was no need for him to designate himself the appeal authority. 5. They argue that the case should have gone to the Commander, 3d Infantry Division, but there is no evidence that anyone ever asked that commander to consider the appeal or even ask the 3d Infantry Division SJA to weigh in on the issue. 6. There is no evidence of any substantive violation of any of the applicant's rights.   //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009511 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009511 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2