IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220006469 APPLICANT REQUESTS: * removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), 11 March 2013, from his Army Military Human Resource Record (AMHRR) * reinstatement of his rank/grade of staff sergeant/E-6 APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552). FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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: a. Nonjudicial punishment was imposed against him on 11 March 2013 for failure to report to Fort Lee, VA. The punishment consisted of demotion from the rank/grade of staff sergeant/E-6 to sergeant/E-5. He believes he was demoted erroneously and for personal reasons. b. On or about 3 December 2012, he was given orders for a permanent change of station (PCS) to Fort Lee, VA, with a reporting date of 10 December 2012, a week later. He was then given an extension to report on 24 February 2013. c. In January 2013, he was involved in a motor vehicle accident, and he requested another extension for his reporting date to Fort Lee, VA, to allow more time to settle issues resulting from the vehicle accident. As he awaited approval for his second extension, in mid-February he was told he was flagged for failing to report to his duty station on 10 February 2013. He stated his orders were amended to report on 24 February 2013. Now he could not execute a PCS because he was flagged. He learned he was flagged because his paperwork for his second extension was not completed. d. As he was facing UCMJ action, he was given a counseling statement explaining that he missed his PCS date. He signed his counseling statement on 4 March 2013. He was advised to seek legal counsel for the UCMJ action. He declined to accept a court- martial because it would take 6 to 12 months and he was going to execute a PCS after the flag was lifted. e. His unit declined to view his information about his leadership character or his orders during the Article 15 proceedings. He was demoted in rank and dismissed. He believes the first sergeant had personal issues with him because of a prior issue and because he was leaving the unit. Checking the dates of the counseling and his record will show that things do not align and his character was not shown any favor. 3. Headquarters, III Corps and Fort Hood, Orders L313-008, 8 November 2012, ordered him to proceed on a PCS and assignment to the U.S. Army Ordnance School, Fort Lee, VA, with a reporting date of 10 December 2012. 4. Headquarters, III Corps and Fort Hood, Orders L348-018, 13 December 2012, amended Orders L313-008, to change his reporting date to 24 February 2013. 5. On 28 February 2013, he received developmental counseling from his platoon sergeant for missing his PCS reporting date. a. The Key Points of Discussion states: (1) He will be flagged and recommended for UCMJ action for failing to report to his gaining unit on 24 February 2013 in accordance with his PCS Orders L348-018, 13 December 2012. He was given one extension from his original reporting date of 10 December 2012 and he was instructed to clear post and report to his new duty station on 24 February 2013 several times by his company commander and first sergeant. (2) He requested a second extension, stating he had been in a car accident, which has been verified, and that he was under the care of off-post medical personnel. This has not been verified by any military physician or medical authority. He submitted a DA Form 4187 (Personnel Actions) requesting a second extension; however, he was still instructed to clear post and prepare to proceed in the event his request was denied. He actively chose not to do his part to clear post and chose to make excuses and wait on the results of his request. By not being actively engaged, he missed his reporting date and may possibly be listed as absent without leave by his gaining unit.? b. The Session Closing shows he disagreed with the information and remarked that there were several factors on the chain of command's part relating to him missing his reporting date. He submitted his request within a decent time frame and was only given instructions to continue to clear post prior to his reporting date on or about 18 February 2013. Prior to getting his leave form approved, he was told he had to submit an award and his noncommissioned officer evaluation report. He cannot be held solely responsible for this action. He signed and dated the form on 4 March 2013. 6. The DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)), 1 March 2013, shows a flag was initiated to suspend favorable personnel actions for adverse action effective 25 February 2013. 7. On 9 March 2013, he received nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty on or about 24 February 2013, to wit: U.S. Army Ordnance School located at Fort Lee, VA, and for being derelict in the performance of his duties in that he willfully failed to properly out-process from the 27th Brigade Support Battalion and Fort Hood on or about 24 February 2013. a. He elected not to demand a trial by court-martial and elected to appeal and to submit additional matters. His appeal memorandum (Article 15 Appeal), 13 March 2013, states he is not guilty. He was told by the chain of command that he could submit a deferment to extend his PCS reporting date. On 18 January 2013, he was involved in a two-car collision that now requires him to pay up to $3,000 in additional damages that his insurance does not cover. In order to stay in the military and progress, he feels he needs to keep his rank. He has worked hard for his rank and keeping it will allow him to go to schools in his military occupational specialty needed to reach the rank/grade of sergeant first class/E-7. Maintaining his rank will also allow him to keep his assignment in Fort Lee, VA. b. His punishment consisted of reduction to the rank/grade of sergeant/E-5 and forfeiture of $1,446 pay for 1 month. His battalion commander directed filing the original DA Form 2627 in the restricted folder of his AMHRR. c. On 19 March 2013, the judge advocate stated the proceedings were conducted in accordance with law and regulation and the punishments imposed were not unjust or disproportionate to the offense committed. d. On 25 March 2013 after consideration of all matter presented in the appeal, his brigade commander denied his appeal. 8. His records do not contain orders reducing him in rank/grade to sergeant/E-5. 9. His DA Form 199 (Informal Physical Evaluation Board Proceedings), 31 October 2014, shows he was serving in the Regular Army when the physical evaluation board found him physically unfit and recommended his permanent disability retirement and a disability rating of 70 percent. His unfitting condition is shown as migraine headaches. The condition began on 18 January 2013 as the result of a motor vehicle collision while assigned to Fort Hood, TX. 10. Headquarters, III Corps and Fort Hood, Orders 325-0127, 21 November 2014, released him from his assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permit his retirement for permanent physical disability effective 12 February 2015 and placed him on the Retired List effective 13 February 2015. His retired rank is shown as sergeant. 11. He retired on 12 February 2015. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 4a (Grade, Rate, or Rank) – Sergeant * item 4b (Pay Grade) – E-5 * item 12c (Net Active Service This Period) – 10 years, 9 months, and 2 days * item 12i (Effective Date of Pay Grade) – 11 March 2013 * item 23 (Type of Separation) – Retirement * item 28 (Narrative Reason for Separation) – Permanent Disability (Enhanced) 12. On 27 February 2015, he was awarded the Army Commendation Medal for exceptionally meritorious service for the period 1 September 2004 to 31 August 2014. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered a. The evidence of record confirms the commander administering the Article 15 proceedings determined the applicant committed the offense in question during a closed Article 15 hearing after considering all the evidence submitted. The evidence of record confirms the applicant waived his right to a trial by court-martial and opted for a closed Article 15 hearing. 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. He also submitted an appeal, but his appeal was denied. b. The Board determined the applicant did not provide convincing evidence that shows the imposing commander denied him the right to speak or bring issues in his defense during the proceedings. The argument he now presents is not sufficient to change the determination of guilt made by the commander. His dissatisfaction with the outcome of this Article 15 does not invalidate it. He violated the UCMJ, and he was punished for it and the resultant punishment was his reduction. There is neither an error nor an injustice and there is no reason to set the Article 15 aside or restore his rank. In view of the foregoing, the Board determined there is an insufficient evidentiary basis for granting the applicant's requested relief. 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. ? REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 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 members will direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists in the record. 3. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts- Martial. Chapter 3 implements and amplifies Article 15 of the UCMJ and chapter XXVI of the Manual for Courts-Martial. a. Paragraph 3-4 states a commander will personally exercise discretion in the nonjudicial punishment process by: (1) evaluating the case to determine whether proceedings pursuant to Article 15, UCMJ, should be initiated. (2) determining whether the Soldier committed the offense(s) where Article 15, UCMJ, proceedings are initiated, and the Soldier does not demand trial by court-martial; and (3) determining the amount and nature of any punishment if punishment is appropriate. b. Paragraph 3-28 describes setting aside of punishment and restoration of rights, privileges, or property. This is an action whereby the punishment or any part or amount thereof, whether executed or unexecuted, is set aside and any property, privileges, or rights affected by the portion of the punishment set aside are restored. (1) Nonjudicial punishment 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, UCMJ. 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. (2) "Clear injustice" means 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. Normally, the Soldier's uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment. 4. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. a. Paragraph 2-2 (Assistant Secretary of the Army (Manpower and Reserve Affairs) states the Department of the Army Suitability and Evaluation Board will transfer records of nonjudicial punishment (proceedings pursuant to Article 15, UCMJ) that are determined upon appeal to have served their intended purpose from the performance to the restricted folder of the AMHRR when such transfer would be in the best interest of the Army. b. Paragraph 7-2a(4) (Appeals for Article 15 Removal) states the Department of the Army Suitability and Evaluation Board will not consider appeals to remove a records of proceedings under Article 15, UCMJ, from the AMHRR. The authority to adjudicate such claims rests with the ABCMR. c. Paragraph 7-2d (Burden of Proof and Level of Evidence Required) states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been pursuant to an objective decision by a competent authority. For removals, there is no time restriction for submitting an appeal for removal of unfavorable information from the AMHRR. The recipient has the burden to proof to show, by clear and convincing evidence, that the document is either untrue or unjust, in whole or in part. Evidence submitted in support of the appeal may include but is not limited to an official investigation showing the initial investigation was untrue or unjust, decisions made by an authority above the imposing authority overturning the basis for the adverse documents, notarized witness statements, historical records, official documents, and/or legal opinions. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. 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. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220006469 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1