IN THE CASE OF: BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20160012791 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 November 2016 DOCKET NUMBER: AR20160012791 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. IN THE CASE OF: BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20160012791 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, setting aside the punishment imposed under Article 15, Uniform Code of Military Justice (UCMJ), on 28 June 2016, with restoration of his rank/grade of staff sergeant (SSG)/E-6. 2. The applicant states: a. He feels there was an unjust ruling in his Article 15 proceedings. None of the evidence showing that he did not commit the disrespect was taken into consideration. Both the battalion and brigade commanders went off what First Lieutenant (1LT) BD (now 1LT BN) described about the incident. They based their decision of his character described by 1LT BD instead of reviewing all the statements presented. He is not trying to make excuses to get out of punishment; he believes his hearings did not adhere to Army Regulation (AR) 27-10 (Military Justice), chapter 3. b. As a Soldier in today's Army, he understands the importance of showing and being respectful to all levels of leadership, regardless of how an individual may feel or see a situation/circumstance. Respect plays a huge part of being a Soldier and should never be taken lightly. For the past 10 years, the U.S. Army has been and will continue to be his life. He joined the Army, not for personal gain but because he wanted to serve his country and defend what we all hold dear. c. Throughout his counseling packet, he has received only two negative counselling statements; one [for the disrespect] and the other for allegedly failing to take care of his Soldier's pay. Since he was assigned to B Company, 23rd Brigade Engineer Battalion (BEB), he never received an initial counseling and since becoming a noncommissioned officer (NCO) in 2009 he has not received an NCO Evaluation Report (NCOER) other than "Met the Standard/Excellence." This included the annual NCOER given to him by 1LT BD on 16 November 2015. He never received any verbal warnings or any counseling that would resemble anything close to this type of situation. He did receive an award from 1LT BD during the rating period. d. The charge that he was facing was violation of Article 89, UCMJ. 1LT BD declared he raised his voice towards a senior officer (her), knowing this officer to be senior to him. The situation happened on 5 May 2016 at the mile's yard, Fort Irwin, CA, during National Training Center rotation. Every Soldier that was present wrote a sworn statement indicating that he did not commit the offense whereas 1LT BD had no statements or witnesses to back up her claim. e. During his first hearing with the battalion commander, he afforded him the chance to discuss the alleged incident. He then asked one of the witnesses of the event as well as three other Soldiers who were character witnesses to speak on his behalf. During the hearing, he (the battalion commander) did not read any of the sworn statements made by the Soldiers that had been present. He (the applicant) informed him to the best of his ability exactly what happened and his decision was based off something that he was not even being faced with. f. During his second hearing with the brigade commander, Colonel (COL) DF, stated that he had been disrespectful and subordinate toward senior leaders but failed to produce any evidence in regards to such claims. The accusations were all hearsay from 1LT BD and his new company commander, Captain (CPT) C. He never got a chance to talk or discuss the incident with the brigade commander. COL DF only wished to talk about his character but did not read any of the character statements that were provided. While discussing his character with him (COL DF), he disregarded it completely and went off what 1LT BD and CPT C stated. CPT C had only been his commander for less than a month and he (the applicant) had limited, if any, contact with him. The claims that were made by both of them were never discussed with him prior to the meeting with COL DF. g. The brigade commander informed him that there was sufficient evidence for him to convict him of violating Article 89, due to his character, even though there was no additional counseling for misconduct or disrespect presented in his folder; his appeal was denied. He is requesting a more thorough investigation into this matter. 3. The applicant provides: * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) * six DA Forms 2166-8 (NCOER) for the rated periods 1 October 2009 through 25 June 2011 and 12 June 2012 through 11 November 2015 * DA Form 638 (Recommendation for Award), dated 4 April 2016 * two DA Forms 4856 (Developmental Counseling Form) dated 7 March and 2 June 2016 * memorandum, dated 20 June 2016 * five DA Forms 2823 (Sworn Statement), four dated 7 June 2016 and one dated 21 June 2016 * 12 statements of support CONSIDERATION OF EVIDENCE: 1. Having had prior Reserve service, the applicant enlisted in the Regular Army on 17 April 2008 in the rank of specialist/E-4. He held military occupational specialty (MOS) 12N (Horizontal Construction Engineer Specialist). 2. On 1 October 2009, he was promoted to sergeant (SGT)/E-5. He served through several reenlistments and/or extensions in a variety of assignments, including a tour in Afghanistan. 3. In November 2014, he was assigned to B Company, 23rd BEB, 1st Engineer Regiment, 2nd Stryker Brigade Combat Team (SBCT), Joint Base Lewis-McChord (JBLM), WA. On 1 June 2015, he was promoted to SSG. 4. He provides, in part: a. An annual NCOER he received in March 2016 for the rated period 12 November 2014 through 11 November 2015 for his duties in MOS 12N while assigned to B Company, 23rd BEB. His rater was 1LT BD, Platoon Leader, and his senior rater was CPT DK, Company Commander. This NCOER shows his rater marked his overall performance as "Exceeded Standards" and his senior rater marked his overall potential as "Qualified." b. A DA Form 638, dated 4 April 2016, shows 1LT BD recommended him for award of the Army Achievement Medal for the period 5 February 2016 for his outstanding performance during the Spearhead Challenge that improved morale and esprit de corps in B Company. 5. On 17 June 2016, at JBLM, Lieutenant Colonel (LTC) KM, 23rd BEB Battalion Commander, notified the applicant that he was considering whether he should be punished under Article 15, UCMJ for the following misconduct: a. In that he did, at or near Fort Irwin, on or about 5 May 2016, behave himself with disrespect toward 1LT BN, his superior commissioned officer, then known by him to be his superior commissioned officer, by raising his voice at her in front of subordinate Soldiers. This was a violation of Article 89, UCMJ. b. In that he did, at or near JBLM, on or about 7 March 2016, fail to obey a lawful general regulation, to wit: paragraph 5-6a, Fort Lewis Regulation 210-1 (Standards for Soldiers on Fort Lewis), dated 24 March 2004, by wrongfully using his Army computer for personal use outside of the permission of his supervisor. This was a violation of Article 92, UCMJ. 6. On 20 June 2016, after consulting with counsel, the applicant declined trial by a court-martial, requested an open hearing, requested to have a person speak in his behalf, and elected to present matters in defense, extenuation and/or mitigation. 7. On 28 June 2016, at an open hearing, LTC KM found the applicant: * guilty of the misconduct of behaving with disrespect toward 1LT BN by raising his voice at her in front of subordinate Soldiers * not guilty of failing to obey a lawful general regulation by wrongfully using his Army computer for personal use 8. He was given nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ; the punishment was reduction to SGT. The imposing commander ordered the Article 15 filed in the performance section of his official military personnel file. He was reduced to SGT effective 28 June 2016. On the same date, he appealed his punishment. 9. On 11 July 2016, the reviewing judge advocate opined the proceedings were conducted in accordance with law and regulation. 10. On 14 July 2016, COL DF, 2nd SBCT Brigade Commander, after consideration of all matters presented in his appeal, denied the appeal. 11. The applicant provides 12 statements of support, one undated and 11 dated between 29 June and 3 July 2016, wherein several junior Soldiers, senior NCOs, and commissioned officers stated, in part, they had known him anywhere from 2 months to over 2 years. He was a great leader and role model who took the time to help Soldiers. He demonstrated personal courage and was a disciplined, passionate individual who cared about his job, and wanted to improve himself and his unit. REFERENCE: AR 27-10 prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It states a commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. a. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. 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. b. Paragraph 3-28 of this regulation describes the setting side and restoration actions. 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 unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. DISCUSSION: 1. The Army Board for Correction of Military Records (ABCMR) considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 2. The evidence of record confirms that the commander administering the Article 15 proceedings determined the applicant committed the offense in question during an open Article 15 hearing after considering all the evidence submitted. By law and regulation, before finding a Soldier guilty during Article 15 proceedings, the commander must be convinced beyond a reasonable doubt that the Soldier committed the offense. 3. The applicant waived his right to a trial by court-martial and opted for an open Article 15 hearing. The imposing commander found him guilty of one of the offenses of misconduct and the resultant punishment consisted of his reduction to SGT. He appealed his punishment and the higher commander acted on his appeal and denied his appeal. His NJP proceedings were conducted in accordance with law and regulation. Other than the applicant's own statement, there is no evidence showing the information recorded on the DA Form 2627 in question is untrue or unjust. 4. 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 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, he was given the right to demand trial by court-martial, and he was afforded the opportunity to appeal the Article 15 through the proper channels. 5. He did not provide convincing evidence that shows the imposing commander denied him the right to speak or bring forth issues in his defense during the proceedings. In addition, as the imposing commander found the applicant not guilty of one of the misconduct charges against him, it appears he considered all the evidence submitted before making his final determination. 6. 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 unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. 7. The applicant violated the UCMJ and he was accordingly punished. His punishment included a reduction of one grade. There is no evidence that shows the Article 15 is untrue, inaccurate, or that his reduction to SGT was unjust or in error. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012791 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012791 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2