IN THE CASE OF: BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20160017578 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: 21 February 2017 DOCKET NUMBER: AR20160017578 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20160008423 on 14 July 2016. ___________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: 21 February 2017 DOCKET NUMBER: AR20160017578 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 reconsideration of his earlier request for removal from his Official Military Personnel File (OMPF) of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 1 December 2014 and a general officer memorandum of reprimand (GOMOR) dated 12 January 2015. 2. The applicant states: * he was made aware of a memorandum by the Article 15 imposing officer clarifying his intent to set aside the all punishment, executed and unexecuted * in the initial supplemental action taken by the imposing officer, he failed to set aside the entire punishment because part of the punishment had already been executed * upon learning that the executed punishment was also to be included in the "set aside" action, the imposing officer completed a memorandum clarifying his position * the memoranda from his entire rating scheme that the Noncommissioned Officer Evaluation Report (NCOER) he received during the time was given based on erroneous perception were not considered * he did not receive adequate counseling during the duration of the Article 15 proceedings; he was in Italy and his counsel was in Germany aiding another Soldier on trial * he was not made aware of some of his rights; until a day before the proceedings he was not made aware that he was allowed to have people speak on his behalf * upon completion of the proceedings, he was not made aware of the options regarding appeal and it was not until his counselor's return that he was able to put together a strong defense and request for the commander to reconsider the case' * if he had more sound counsel and a better understanding of his options, he might have taken a different action every step of the way * based on this information, he believes the Article 15 should be removed, which would also negate his involuntary separation under the Qualitative Management Program (QMP) 3. The applicant provides: * DA Form 2627-2 (Record of Supplementary Action under Article 15, UCMJ) * memorandum for record (MFR), dated 25 May 2016, subject: Clarification of Supplemental Action Taken on 3 June 2015 * Extract from Army Regulation (AR) 27-10 (Military Justice) CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160008423, on 14 July 2016. 2. The applicant provides a memorandum from the Article 15 imposing officer as well as a new argument that were not previously considered. This is considered new evidence that warrants consideration by the Board. 3. The applicant enlisted in the Regular Army on 27 July 2006 and he holds military occupational specialty 29E (Electronic Warfare Specialist). He served through multiple reenlistments in a variety of assignments and he was promoted to staff sergeant effective 1 May 2013. 4. Around March 2013, he was assigned as an Electronic Warfare Sergeant to the 1st Battalion, 503rd Infantry (Airborne), 173rd Infantry Brigade Combat Team (Airborne), Vicenza, Italy. 5. On 18 November 2013, the Battalion Commander, 1st Battalion, 503rd Infantry (Airborne), notified the applicant that he was considering whether he should be punished under Article 15, UCMJ, for physically controlling a vehicle while drunk on or about 26 October 2014 near Vicenza, Italy. 6. Having been afforded the opportunity to consult with counsel and understanding his rights, the applicant decided to decline trial by a court-martial and opted for a closed hearing. He further requested a person to speak on his behalf and elected to present matters in his own defense in person. 7. On 1 December 2014, the imposing officer found him guilty of violating Article 111, UCMJ. The applicant received nonjudicial punishment (NJP) under Article 15 of the UCMJ for physically controlling a vehicle while drunk. His punishment consisted of reduction to sergeant (SGT)/E-5, 45 days of extra duty, and 45 days of restriction. The imposing commander directed filing the DA Form 2627 in the restricted folder of his OMPF. The applicant was advised of his right to appeal to the next higher authority; however, the applicant indicated he did not want to appeal. 8. On 12 January 2015, he was reprimanded by the Commanding General (CG), U.S. Army Africa/Southern European Task Force, for unlawfully driving a motor vehicle while under the influence of alcohol. The GOMOR stated: a. The Provost Marshall's Office was notified of a possible medical emergency at a gas station off post on 26 October 2014. Further investigation revealed that the applicant was unresponsive behind the wheel of his privately owned vehicle (POV) with the vehicle turned off and still in drive. When military police responded to the scene they detected a strong odor of alcohol emitting from his person. A series of standardized field sobriety tests were administered showing multiple signs of impairment. He was apprehended and transported to the military police station where he rendered a breath sample with a result of .118% blood alcohol content. b. As an NCO, he was charged with the responsibility of setting the example for Soldiers to emulate. Clearly his actions fell below the standards expected of an NCO. There was no excuse for his irresponsible behavior. This was an administrative reprimand imposed under the provisions of AR 60-37 (Unfavorable Information) and not as punishment under Article 15 of the UCMJ. 9. On 11 March 2015, after carefully considering the reprimand, the circumstances surrounding the incident, and all matters submitted by the applicant in defense extenuating or mitigating, the CG ordered the GOMOR be placed permanently in the applicant's OMPF. 10. During March 2015, he received an annual NCOER covering the rating period 14 March 2014 through 13 March 2015. His rater was Sergeant First Class (SFC) CMT, the Battalion Effects NCO; his senior rater was First Lieutenant (1LT) DLZ, the Battalion Assistant Fire Support Officer (FSO); and his reviewer was Captain (CPT) ZAR, the Battalion FSO. It shows: * He was rated "Fully Capable" by his rater for overall potential for promotion and/or service in positions of greater responsibility * He was rated "Successful-2" by his senior rater for overall performance * He was rated "Superior-2" by his senior rater for overall potential for promotion and/or service in positions of greater responsibility 11. On 28 May 2015, the NJP-imposing commander issued an MFR in which he stated that setting aside the rank reduction was appropriate for the following reasons: a. Since the incident in October 2014, the applicant had continued to perform exceptionally at the level of a SSG. He completed his punishment from the Article 15 without complaint and without letting it diminish his motivation or work ethic. He also received a GOMOR, which was ultimately filed in his OMPF, and he still continued to outperform many of his peers. His commitment to the organization and the Army at large was apparent. b. He successfully completed the Army Substance Abuse Program, was actively participating in Alcoholics Anonymous, and had been sober since October 2014. Given his performance since the incident, dedication to indefinite sobriety, and the unique circumstances of the incident itself, he had no doubt this incident was isolated and would not be repeated in his career. c. It was in the best interest of the Army for the applicant to be a staff sergeant. He had set himself apart by becoming the only Soldier in his military occupational specialty, electronic warfare specialist, to be both Ranger and Battle Staff qualified. As a SGT, his ability to work in positions where his skill set would be extremely useful would be severely hindered. Considering all of the above-mentioned matters, setting aside the applicant's rank reduction was justified. 12. On 3 June 2015, the Article 15 imposing commander issued a DA Form 2627-2, which shows the imposed reduction in rank punishment was set aside on the basis of a clear injustice. 13. On 28 January 2016, he appealed the NCOER for the rating period 14 March 2014 through 13 March 2015 to Enlisted Special Review Board (ESRB). He provided 3 similar statements from his NCOER rating officers (SFC CMT, 1LT DLZ, and CPT ZAR). They all indicated they were inaccurate in their ratings and that the applicant should have received a higher rating than that reflected on the NCOER. His rating officials raised issues related to administrative and substantive issues on the NCOER. 14. On 3 May 2016, the ESRB granted him partial relief in relation to administrative issues (rank and date of rank), but rejected his argument and those of his rating officials. The ESRB determined the contested report was not in error as it reflected the considered opinions and objective judgment of those rating officials at the time the NCOER was rendered. 15. On 9 May 2016, he petitioned this Board for the removal from his OMPF of the Article 15 imposed on 1 December 2014 and the GOMOR administered on 12 January 2015. With his request, he provided multiple character-reference statements from various NCOs and/or officers recommending his retention on active duty. They attest: * he is a resilient, dedicated leader who continues to demonstrate great potential and excellence; he consistently operates at the highest standards * he demonstrates strong leadership and great potential for continued service; he is mature and extremely competent * his personal and professional conduct has earned him the respect of subordinates, peers, and superiors * his talents, abilities, and experiences will undoubtedly make him an outstanding senior leader in the future * he remains one of the most capable, hardest working, and highest performing NCOs the battalion engineer has observed * he has constantly sought opportunities to advance his technical and tactical competencies and has consistently shared these experiences for the better of his U.S. Army * he is a confident Soldier, always troubleshooting a situation and using resources; he lives the Army Values and will always make himself available to help any Soldier in need * he has learned his lesson from the incident that resulted in the GOMOR * he is a Ranger, Jumpmaster, and graduate of the Army Battle Staff NCO Course * he has a high level of competence and professionalism; he is a professional and a trustworthy individual; he is a person of moral fortitude and has an intense desire to serve his country with honor and distinction 16. On 14 July 2016, the Board determined the evidence presented did not demonstrate the existence of a probable error or an injustice. The Board denied his request. 17. On 25 May 2016, the Article 15 imposing officer issued an MFR, subject: Clarification of Supplementary Action taken on 3 June 2015. He states that his intent was to set aside the applicant's punishment under Article 15. As the applicant's restriction and extra duty had already been executed, he did not include those portions of the punishment in the supplemental action (DA Form 2627-2). His intent was to set aside all punishment, executed and unexecuted REFERENCES: 1. AR 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 3-28, setting aside and restoration, 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. 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 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 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. c. Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the OMPF. It states 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. It further indicates there must be clear and compelling evidence to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the Army Board for Correction of Military Records. 2. AR 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. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) of AR 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. a. The instructions state to file letters of reprimand, censure, or admonition in the performance folder unless directed otherwise by the Department of the Army Suitability Evaluation Board. b. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 on the DA Form 2627). Allied documents accompanying the DA Form 2627will be filed in the restricted folder. 3. AR 600-37 provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier. The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand. Statements or other evidence furnished by the recipient must be reviewed and considered before a filing determination is made. a. A memorandum of reprimand may be filed in a Soldier's AMHRR only upon the order of a general officer-level authority and is to be filed in the performance section. The direction for filing is to be contained in an endorsement or addendum to the memorandum. If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached. Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with chapter 7 of AR 600-37. b. Paragraph 7-2 (Policies and standards) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 4. Various Military Personnel (MILPER) Messages provide guidance and procedures in support of the QMP. The purpose of this board is to identify selected NCOs for possible involuntary separation, specifically those with a GOMOR, conviction by a court-martial or under Article 15, Relief for cause NCOER, a "No" in the Army Values on an NCOER, a senior rating of "4" on an NCOER, and NCO Education System failures. * Soldiers selected by the QMP for denial of retention must exercise an option (appeal, accept, retire, etc.) * Soldiers may appeal on the basis of a material error in their records when reviewed by the board; the chain of command, all the way to a general officer, must recommend approval or disapproval * Soldiers who elect to appeal but fail to submit their appeal within 30 days or without compelling justification will continue to process for discharge; the Director of Military Personnel Management is the final authority for disposition of appeal DISCUSSION: 1. With respect to the Article 15: a. The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during an Article 15 hearing after considering all the evidence submitted by him. 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 offenses. The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for an Article 15 hearing. b. The applicant accepted NJP and his punishment consisted of reduction to E-5 and 45 days of restriction and extra duty. The imposing officer directed this Article 15 be filed in the restricted section of his OMPF and this is where the Article 15 is currently filed. The evidence shows he consulted with counsel, he was advised of his rights, and he was advised of his right to appeal. He elected not to appeal. c. In June 2015, the imposing commander reconsidered the applicant's case and decided to set aside the portion of the punishment as pertained to the reduction to E-5. Then, in May 2016, the imposing commander stated his intent was to set aside the entire punishment and not just the reduction. He stated the set aside did not include the extra duty and restriction because this portion had already been executed. His intent was to set aside all punishment, both executed and unexecuted. d. Although the imposing commander set aside the punishment, neither he nor a successor commander set aside the finding of guilty. If all findings are set aside, then the Article 15 itself is set aside and removed from the Soldier’s records. Here only the punishment was set aside. The decision to set aside the punishment did not change the finding of guilt and did not change the filing decision directed by the imposing officer. e. By regulation (AR 27-10), the imposing commander’s filing decision will be indicated in item 4b of DA Form 2627 and a change in the filing decision should be recorded in block 8 of DA Form 2627. While it appears the next higher commander's intent is not to punish the applicant, there is no change on the filing decision recorded by the imposing commander in block 8. f. 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, was given the right to demand trial by court-martial, and was afforded the opportunity to appeal the Article 15 through the proper channels. The applicant elected not to appeal. g. His NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in the restricted section of his OMPF as directed by the imposing commander. He has not demonstrated the NJP action was unjust or untrue, that this NJP should be removed, or that a removal would be in the best interest of the Army. 2. With respect to the GOMOR: a. The evidence of record shows the applicant, while holding the NCO rank of SGT, was involved in an alcohol-related incident when an investigation revealed that he was unresponsive behind the wheel of his POV with the vehicle turned off and still in drive. When military police responded to the scene they detected a strong odor of alcohol emitting from his person. A series of standardized field sobriety tests were administered showing multiple signs of impairment. He was apprehended and transported to the military police station where he rendered a breath sample with a result of .118% blood alcohol content. b. Accordingly, he received a GOMOR. He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision. After carefully considering the reprimand, the circumstances surrounding the incident, and all matters submitted by the applicant, along with the recommendations of subordinate commanders, the CG ordered the GOMOR be placed permanently in the applicant's OMPF. c. The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate. Once the GOMOR was filed on the applicant's OMPF, it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. d. The GOMOR was correctly filed. The evidence does not demonstrate that this GOMOR is either untrue or unjust. 3. With respect to the QMP, this is not a new program: a. Various MILPER Messages have in the past provided and continue to provide today guidance and procedures in support of the QMP. The purpose of this program is to identify selected NCOs for possible involuntary separation. Specifically those with a GOMOR, Article 15, court-martial conviction, relief for cause NCOER, etc., may be denied retention. b. It appears the QMP board, upon review of his record, determined he should not be retained. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017578 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017578 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2