IN THE CASE OF: BOARD DATE: 7 March 2023 DOCKET NUMBER: AR20220009169 APPLICANT REQUESTS: restoration to the rank/grade of sergeant (SGT)/E-5 that resulted from his reduction via an Article 15. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant states, in effect, his rank of SGT was taken from him in March 2019 in accordance with the ruling of his Article 15. He diligently worked off the punishment as agreed and ordered. He was never given the opportunity to regain the rank of SGT that he undoubtedly earned. Now he is requesting that his rank be reinstated, albeit in retirement. a. His punishment was incredibly personal in nature. Ethical and moral considerations were of concern. His punishment was completed without issue or complaint. His attitude, character and performance both before and after his discipline was exemplary. b. Review of documentation from his unit will show multiple instances where discipline failed to correct more severe wrong doing and yet rank, pay, and privileges were restored to other individuals. He was honorably discharged and had no negative counsel prior to Headquarters and Headquarters Company, 4th Battalion, Army Ranger Battalion. c. Throughout the proceedings, he was being evaluated diagnosed, and treated for mental/emotional distress due to marital separation and mental instability. He was clearly discriminated against which is evidenced by the lack of even a Certificate of Achievement or handshake for leaving the unit after having worked there for almost 4 years. d. The applicant indicated on his application that he included his Department of Veteran Affairs (VA) documentation; however, it was not included. On 17 November 2022, the Army Review Boards Agency emailed the applicant requesting the documentation and gave him a 10 day suspense. The applicant did not respond. 2. The applicant's service record contains the following documents for the Board's consideration: a. DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States) shows on 14 December 2012, the applicant enlisted in the Army National Guard (ARNG) for a period of 8 years. b. National Guard Bureau Form 22 (Report of Separation and Record of Service) shows the applicant was honorably released from the ARNG, in the rank of specialist (SPC) on 8 November 2015 for enlistment or appointment in any regular component. c. DD Form 4 shows on 9 November 2015, the applicant enlisted in the Regular Army for a period of 5 years. d. On 30 April 2019, the applicants immediate commander informed him that he was considering whether he should be punished under Article 15 for disobeying a lawful order and false official statement. e. The applicant consulted with counsel, declined trial by a court-martial and opted for a closed hearing. He also elected to present matters in his own defense and declined having someone speak on his behalf. f. On 3 May 2019, at a closed hearing, the commander found him guilty of disobeying a lawful order and false official statement. The DA Form 2627 (Record of Proceedings Under Article 15, Uniform code of Military Justice (UCMJ)), shows the applicant accepted nonjudicial punishment, in the rank of SGT. His punishment included reduction to the rank of SPC and extra duty. The applicant did not appeal his punishment. g. DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) dated 16 March 2020 shows the board found the applicant physically unfit for duty and recommended a rating of 50 percent and that he be placed on the temporary disability retired list with a reexamination in December 2020. The applicant's disability was major depressive disorder, severe and anxiety disorder, unspecified. The applicant concurred with the findings and waived a formal hearing in his case. h. DD Form 214 (Certificate of Release or Discharge from Active Duty) shows on 24 June 2020, the applicant, in the rank of SPC was honorably released from active duty and placed in the U.S. Army Reserve Control Group (Retired). i. DA Form 199 dated 12 April 2022, shows the applicant was found to be physically unfit and the PEB recommended a rating of 70 percent and his disposition be placement on the permanent disability retired list. 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 shows the applicant’s commander informed the applicant of his intent to punish him under Article 15 for disobeying a lawful order and false official statement. The applicant declined trial by court-martial and opted for a closed hearing. The imposing commander found him guilty and directed filing the Article 15 in his Official Military Personnel File (OMPF). The applicant elected not to appeal. 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 he was afforded the opportunity to appeal the Article 15 through proper channels. b. His NJP proceedings were conducted in accordance with law and regulation and his Article 15 is properly filed in his OMPF as directed by the imposing commander. There is no evidence of record, and he provides none to show the DA Form 2627 is untrue or unjust. His punishment consisted of a reduction to E-4. There is no evidence the finding of guilty or the punishment were set aside, or a higher commander restored his rank to E-5, or that he was promoted back to E-5 after his reduction. His disability orders correctly show his rank/grade of SPC/E-4 and there is no error or injustice. ? 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. Army Regulation (AR) 600-8-19 (Enlisted Promotions and Reductions) Chapter 3 (Semi-Centralized Promotions (Sergeant and Staff Sergeant) provides that field grade commanders of any unit authorized a commander in the rank of lieutenant colonel or above may promote an enlisted Soldier to the rank of SGT or SSG. 2. AR 27-10 (Military Justice) provides that any commander is authorized to exercise the disciplinary powers conferred by UCMJ, Article 15. Regarding reductions in grade, 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 UCMJ, Article 15 if the imposing commander has the general authority to appoint to the grade from which reduced or to any higher grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220009169 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1