ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 May 2019 DOCKET NUMBER: AR20170006127 APPLICANT REQUESTS: The applicant defers his request to counsel. COUNSEL REQUESTS: * removal of his Article 15 from his Official Military Personnel File (OMPF) * reinstatement to the rank of staff sergeant (SSG)/E-6 * retroactive back pay to the date of his demotion APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel Statement * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) (Exhibit1) * Text Messages (Exhibit 2) * DA Form 4856 (Counseling Statement) (Exhibit 3) * DA Form 7279 (Equal Opportunity Complaint Form) (Exhibit 4) * Appointment of Investigating Officer (IO) (Exhibit 5) * Seven DA Forms 2823 (Sworn Statement) (Exhibits 6-12) * Trial Defense Services Article 15 Counseling (Exhibit 13) * Article 15 Appeal (Exhibit 14) * DA Form 268 (Report to Suspend Favorable Personnel Actions) (FLAG) (Exhibit 15) * Retirement Orders (Exhibit 16) * Enlisted Record Brief (ERB) (Exhibit 17) * Noncommissioned Officer Evaluation Reports and Support Letters (Exhibit 18) * Character Statements (Exhibit 19) FACTS: 1. Counsel states the applicant’s chain of command made material errors of discretion and fact regarding the circumstances that led to the Article 15. These material errors prejudiced the validity of the Article 15 and therefore the non-judicial punishment should be corrected. The punishment has irrevocably damaged his reputation and his ability to provide financial security for his family. a. On 13 April 2016 the applicant received an Article 15 for wrongfully saying on or about 14 December 2015 “meet me at the smoking tree” in a group text message to his Soldiers. His intention was to simply inform his Soldiers to gather at a rally point the following day. However, other Soldiers took the original text conversation in an inappropriate direction. b. On 18 December 2015, one Soldier filed an informal Equal Opportunity (EO) complaint regarding the text messages and an AR 15-6 investigation was completed. c. The applicant’s actions did not violate EO program. He had the goal of mustering his Soldiers in a single location so he could brief them all at the same time. Neither his intentions nor his words conveyed any racial undertones during this process. Two of his Soldiers took the text message conversation in an inappropriate racist direction. The following day, the applicant formally counseled the Soldier who had made the inappropriate comments and informed him that his behavior was not acceptable and would not be tolerated. d. The applicant’s chain of command made a material error of fact by misconstruing his words from the onset. When the first “rope” comment was made, the applicant made a remark about needing it to hold his own weight. This stemmed from an ongoing joke among some members of the group text that the applicant was under enough stress to hang himself. e. The applicant retired at the grade of sergeant (SGT)/E-5 because of his reduction in rank. This cost the applicant an approximate amount of $160,000 in retirement pay. f. The applicant was an excellent Soldier during his career. He deployed four times for a total of 93 months, including two deployments to Afghanistan. g. The applicant’s evaluations show that he has always been rated as either excellent or successful and has been consistently lauded over the years for his ideals, morals, ethics, professionalism, supporting equal opportunity, and his dedication to his fellow Soldiers. h. The applicant made a joke about his own suicide because of the stress he was under. His joke was meant to be humorous, but it was misconstrued by one of his Soldiers who believed this statement had racial undertones to it. The applicant never intended to convey such a message or make any of his Soldiers feel uncomfortable. He is truly repentant and remorseful. The applicant had dedicated his life to serving the Army and had proven himself to be a superb Soldier and leader. 2. Counsel provides: a. Article 15 proceedings, dated 7 April 2016, which shows the applicant received nonjudicial punishment for wrongfully saying “meet me at the smoking tree yeah man and bring a rope” or words to that effect.“ His punishment consisted of reduction to sergeant/E-5. b. Group text messages regarding the smoking tree. c. Counseling statement dated 15 December 2015 from the applicant to SSG C__, which shows he was formally counseled for taking the applicant’s comment about meeting at the smoking tree and turning it into a racial opening. The applicant wanted to ensure there would be no misunderstanding in the future. d. Equal Opportunity (EO) Complaint Form, dated 18 December 2015, filed by a member of the group text message, requesting that the conduct immediate cease. e. Appointment of Investigator Officer to conduct an informal investigation into the informal EO complaint. f. Seven sworn statements by members of the group text message which detail the incident. g. Five Noncommissioned Officer Evaluation Reports from 13 September 2011 to 8 December 2016 which show that the applicant received ratings for his duty performance that included excellence (exceeds standards), success (meets standards) by his immediate raters and successful to superior by his senior raters. h. Fifteen character statements from individuals detailing their relationship with the applicant. 3. A review of the applicant’s service records shows: a. He enlisted in the Regular Army on 15 April 2005. b. He served in Afghanistan from 26 February 2006 to 28 May 2007 and from 1 June 2010 to 24 June 2011. c. On 1 April 2016, his battalion commander considered nonjudicial punishment under Article 15 for wrongfully saying “meet me at the smoking tree yeah man and bring a rope” or words to that effect on 14 December 2015. d. On 7 April 2016, the applicant accepted nonjudicial punishment after consulting with legal counsel. * he did not demand trial by court-martial * he requested the hearing be closed * he requested a person to speak on his behalf * he elected to have matters in defense, extenuation, and/or mitigation presented in person e. On 7 April 2016, his battalion commander, in a closed hearing, found him guilty. His punishment consisted of reduction to SGT/E-5; extra duty for 45 days, suspended, to be automatically remitted if not vacated on or before 4 October 2016; oral reprimand. He directed filing in the performance section of the OMPF. f. The applicant elected to appeal. In his appeal, dated 11 April 2016, his counsel indicated that the applicant had served honorably for 19 years and had never received so much as a Summarized Article 15 and was willing to accept responsibility for his own inappropriate statement about suicide. He had demonstrated a pattern of supporting EO and had no history of making racist comments or jokes. With 19 years of service, the penalty for losing his rank would extend for the rest of his life due to the lost retirement benefits g. On 13 April 2016, the brigade commander, after considering all of the matters presented in the appeal, denied the applicant’s request. h. The Article 15 was added to the applicant’s OMPF on 15 October 2016. i. The applicant was honorably retired from active duty on 31 March 2017. His DD Form 214 (Certificate of Release or Discharge From Active Duty) shows he completed 11 years, 11 months, and 16 days of active service with 8 years, 1 month, and 18 days of prior active service. 4. By regulation, a. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander. When a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced it the date the punishment of reduction was imposed. b. The Board 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. c. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s counsel contentions and the character statements were carefully considered. The Board agreed there was no clear injustice with the UCMJ proceeding nor the appeal. The chain of command investigated the contended complaint. The Board concluded the punishing commander and the appellant authority’s decisions were fully supported by the evidence provided by the investigating officer. 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. Army Regulation (AR) 27-10, (Military Justice), in effect at the time prescribes the policies and procedures pertaining to the administration of military justice. a. Paragraph 3-6 (Filing Determination) states a commander’s decision on whether to file a record of nonjudicial punishment (NJP) on the performance section of a Soldier’s official military personnel file (OMPF) is as important as the decision on whether to impose 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 3-19b(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 3-19(6)(b) (Date of Rank) states when a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced it the date the punishment of reduction was imposed. 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 (Transfer or Removal of Records of Nonjudicial Punishment) 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 the performance portion of the OMPF will, on approval of the member’s application, be processed in accordance with the instructions of the ABCMR. 2. Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. a. Paragraph 3-6 (Authority for Filing or Removing Documents in the AMHRR Folders) 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 Interactive Personnel Electronic Records Management System) 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). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170006127 6 1