ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 8 October 2019 DOCKET NUMBER: AR20190009682 APPLICANT REQUESTS: his rank be restored to Sergeant (SGT)/ E-5 at the time of discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) Statement in Support of Claim * account of applicant's Emergency Room (ER) visit * ER Discharge Instructions FACTS: 1. The applicant states he would like his rank changed from Specialist (SPC) to SGT. He was a noncommissioned officer (NCO) for 2 years and got an Article 15 and was demoted to SPC the last two months he was in the service. 2. The applicant provided: * a VA Statement in Support of his claim, which states: * for 8 months he provides fires in support of Operation Inherent Resolve * he witnessed several deaths and was responsible for 315 enemy killed in action * he has lost sleep and feels extreme guilt for his actions in Iraq * he is very irritable and startles easily as a result * an account of the applicant's visit to the ER by J R , dated 20 June 2019 which states the applicant was on the sidewalk outside a club and three guys beat him up; the applicant had two black eyes, a busted lip, swollen face, bruised ribs, cuts above his eyes and bleeding from his ears * discharge Instructions from his ER visit for eye injury and facial injuries from an assault 3. A review of the applicant’s records show three DA Forms 2627 (Record of Proceedings Under Article 15 UCMJ [Uniform Code of Military Justice]) and one DA Form 2627-2 (Record of Supplementary Action Under Article 15, UCMJ). The Article 15s show that on: * 12 November 2017- the applicant was derelict in the performance of his duties. His punishment was forfeiture of pay, extra duty, and restriction * 21 February 2018- the applicant failed to go to morning accountability formation. His punishment was forfeiture of pay suspended, extra duty and restriction * 14 March 2018 and 17 March 2018- the applicant failed to go to morning accountability formation. His punishment was reduction to SPC, forfeiture of pay suspended, extra duty and restriction * 10 April 2018- the applicant failed to go to morning accountability formation. His suspended reduction and forfeiture were vacated 4. The applicant's service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was honorably discharged on 3 June 2018 at the rank of SPC. His discharge was for completion of required active service. 5. The applicant states, by virtue of his VA Claim that he has Post-Traumatic Stress Disorder (PTSD) which in effect caused him to receive the Article 15s. There is no evidence in the applicant's record, and the applicant did not provide evidence, that he has been diagnosed with PTSD. There is no evidence regarding PTSD being the underlying cause of him receiving his Article 15s 6. There is no evidence in the applicant's record, and the applicant did not provide evidence, regarding the VA's response to his claim. 7. Please see applicable references below. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, the frequency and nature of his misconduct and the reason for his separation. The applicant provided no evidence of a PTSD diagnosis to support his statement and the Board found no evidence of a response to his VA Claim. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and the reduction in grade after the fourth incident of misconduct. Based on a preponderance of evidence, the Board determined that the applicant’s rank upon separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found the 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 ? REFERENCE: Army Regulation (AR) 27-10 (Military Justice) explains the use of nonjudicial punishment, as stating that a commander should use nonpunitive measures to the fullest extent to further the efficiency of the command before resorting to nonjudicial punishment (para 1d(1), Part V, MCM). a. When punishments set forth in an Article 15 proceedings are suspended, it is ordinarily suspended to grant a probational period during which a member may show that he or she deserves a remission of the remaining, suspended, punishment. An executed punishment of reduction or forfeiture may be suspended only within a period of 4 months after the date imposed. Suspension of punishment may not be for a period longer than 6 months from the suspension date. Further misconduct by the member, within the period of the suspension, may be grounds for vacation of the suspended portion of the punishment (para 3-25). b. A commander may vacate any suspended punishment, (para 6a(4), Part V, MCM), provided the punishment is of the type and amount he or she could impose and where the commander has determined that the member has committed misconduct (amounting to an offense under-the UCMJ) during the suspension period. The commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements, he or she reasonably believes to be relevant to the misconduct. There is no appeal from a decision to vacate a suspension. Unless the vacation is prior to the expiration of the stated period of suspension, the suspended punishment is automatically remitted without further action. Commanders will observe the following procedures in determining whether to vacate suspended punishments: (1) If the suspended punishments of the kind set forth in Article 15e (1-7), the member should, unless impracticable, be given an opportunity to appear before the officer authorized to vacate the suspension to rebut the information on which the proposed vacation is based. (2) In cases involving punishments not set forth in Article 15(e)(1-7.) the member will be informed of the basis of the proposed vacation and should be given an opportunity to respond, either orally or in writing. (3) The following will be recorded according to notes 11 and 12, DA Form 2627, notes 9 and 10, DA Form 2627-1, or DA Form 2627-2 (para 3-38b): (a) Action vacating a suspension, to include the basis for vacation. (b) Whether or not the member appeared or was otherwise provided an opportunity to respond. (c) An explanation, if the member did not appear, in a case involving vacation of a suspended punishment listed in Article 15(e)(l) through. (7), or in other cases, if the member was not provided an opportunity to respond. (d) Failure to provide notification and an opportunity to appear or to otherwise respond to the basis of a proposed vacation may result in the record of punishment being inadmissible in a subsequent court-martial, but will not, by itself, render a vacation action void. ABCMR Record of Proceedings (cont) AR20190009682 3