ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 4 June 2019 DOCKET NUMBER: AR20170000840 APPLICANT REQUESTS: in effect, setting aside the non-judicial punishment (NJP) imposed upon him and restoration of his rank to staff sergeant (SSG). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * On-line Application * Resume * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Orders * Medical Records FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he received non-judicial punishment and was reduced from staff sergeant (SSG) to sergeant (SGT) right before his retirement. At that time he was at a very low point in his life. He was diagnosed with post-traumatic stress disorder (PTSD)/ adjustment disorder with depressed mood and anxiety from is deployments. HE was deployed on four separate occasions. He was facing his second divorce and turned to alcohol. He was being forced to retire before he was ready to do so and it would have been difficult to adjust. He falsified the date on his retirement orders in order to stay in longer and was reduced in rank. He was honorably retired with 21 years of service. This has taken a heavy toll on his life and health. He has sought treatment for his alcohol abuse and had remarried. After retirement, he continued to serve as a private military contractor overseas in an austere environment in several occupations and is currently employed as a contractor on Fort Bragg, N.C. He is now a productive member of society. 3. As a SSG, the applicant accepted non-judicial punishment on 11 April 2011, for making an official statements with intent to deceive. He did not demand trial by court- martial, requested a closed hearing, and did not present matters in defense. He was reduced in grade to SGT, forfeiture of $1,482.00 for month for 2 months, extra duty for 19 days, restriction, and an oral reprimand. 4. On 30 April 2011, the applicant was honorably discharged. He completed 21 years, 5 month, and 29 days of net active service this period. 5. On 28 April 2017, the Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. The ARBA psychologist concluded there is no evidence the applicant met criteria for a behavioral health condition during his military service that would warrant a change to his rank at the time of discharge. The applicant’s record is void of the specific facts and circumstances regarding his contention that misconduct was related to mental health concerns. This observation does not negate his time in service, deployment history, or diagnosis of PTSD; however, the nature of these behavioral health conditions are not reasonably related to the misconduct of falsifying documents. Therefore, there is no basis for the applicant’s contention that his previous rank of E-6 should be restored. A copy of the complete medical advisory was provided to the Board for their review and consideration. 6. On 1 May 2017, the applicant was provided with a copy of the advisory opinion for rebuttal or comment. He did not respond. 7. Army Regulation 27-10 (Military Justice) states that commanders may impose NJP for the administration of discipline under the provisions of Article 15, UCMJ. Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15. This regulation also stipulates that only one appeal is permissible under Article 15 proceedings. An appeal not made within a reasonable time may be rejected as untimely by the superior authority BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records and the medical advisory opinion. The Board discussed the applicant’s service record, his PTSD diagnosis, nature of his misconduct and his statement describing his personal circumstances prior to discharge and the conclusions of the advisory opinion related to that misconduct. The Board determined that his misconduct was not mitigated by a condition or experience and that the NJP he received was not in error or an injustice. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted.? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. ADMINISTRATIVE NOTE(S): Not Applicable ? REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 27-10 (Military Justice) states that commanders may impose nonjudicial punishment (NJP) for the administration of discipline under the provisions of Article 15, UCMJ. Reduction in grade is listed among the punishments commanders are authorized to impose under the provisions of Article 15. This regulation also stipulates that only one appeal is permissible under Article 15 proceedings. An appeal not made within a reasonable time may be rejected as untimely by the superior authority. a. Paragraph 3-6 addresses the filing of a record of NJP and provides, in pertinent part, that a commander’s decision whether to file a record of NJP in the performance section 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 section. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. 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 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. c. Paragraph 3-37b(2) states that for Soldiers in the rank of sergeant and above, 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 section or restricted section 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. Additionally, records directed for filing in the restricted section will be redirected to the performance section if the Soldier has other records of NJP reflecting misconduct in the grade of SGT or higher that have not been wholly set aside and recorded in the restricted section. ABCMR Record of Proceedings (cont) AR20170000840 2 1