RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        17 August 2006
      DOCKET NUMBER:  AR20050015003


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Richard T. Dunbar             |     |Chairperson          |
|     |Mr. Dean A. Camarella             |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of DA Form 2627, Record of
Proceedings, Article 15, Uniform Code of Military Justice (UCMJ) from his
Official Military Personnel File (OMPF) and reinstatement of his Top Secret
Security clearance.

2.  The applicant states that over an 11 month period a myriad of
procedural errors were made by the command element of the Joint Task Force-
Guantanamo Bay, Cuba, the prosecutor, and by investigators involved in his
case that resulted in the issuance of an Article 15 and suspension of his
Top Secret security clearance.

3.  The applicant provides a letter and attachments (23-pages) and his
request for lifting the security clearance suspension (94 pages) in support
of this application.

CONSIDERATION OF EVIDENCE:

1.  Records show that the applicant enlisted in the Army of the United
States on 26 April 1968.  After serving a period of enlisted service, the
applicant was commissioned as a second lieutenant in the United States Army
Reserve on 26 April 1971.

2.  US Army Reserve Personnel Command Orders Number C-08-320264, dated 15
August 2003, assigned the applicant to a Joint Reserve Unit on active duty
for a period of at least six months.

3.  The applicant's records contain a Citation for the Joint Service
Commendation Medal.  This citation states that the applicant distinguished
himself by exceptionally meritorious service as the Interrogation Control
Element Commander, Joint Interrogation Group, Joint Task Force-Guantanamo
Bay, Cuba during the period 5 June 2003 through 27 September 2003.

4.  On 29 November 2003, court-martial charges were preferred against the
applicant for violating Article 92, by wrongfully transporting classified
materials without the proper locking device, and violating Article 107 by
intentionally making a false official statement.




5.  On 18 August 2004, the applicant was notified by the commander, Joint
Task Force-Guantanamo Bay, that he intended to impose nonjudicial
punishment (NJP) against him for failure to properly safeguard classified
information.  The applicant elected not to demand a trial by court-martial
and chose to have the matter disposed of at a closed hearing, at which a
representative would speak on his behalf, and at which matters in defense,
mitigation, and/or extenuation would be presented.

6.  On 25 August 2004, the commander having considered all matters
presented in defense, mitigation, and/or extenuation, imposed the following
punishment on the applicant: a forfeiture of $1,000.00 for 2 months and a
General Officer Memorandum of Reprimand.  The applicant did not demand a
trial by court-martial and did not appeal the punishment imposed.

7.  On 27 August 2004, the Commanding General of Joint Task Force-
Guantanamo Bay, Cuba reprimanded the applicant for failing to properly
safeguard classified materials, wrongfully transporting classified
materials without a proper locking container, failing to properly secure
and transport classified documents, and making a false official statement.
The reprimand specifically stated that the applicant was serving in the
position of Director of the Interrogation Control Element at the Joint Task
Force-Guantanamo Bay which was a position that required constant access to
sensitive information collected during the Global War on Terrorism.  The
reprimand continues that while preparing for a permanent change of station
move, the applicant improperly transported classified materials outside of
a secure environment because it was inconvenient to sort them at the
office.  The reprimand further states that the material was transported
without a proper locking device container and left in the applicant's
personally owned vehicle while he socialized in a local bar.

8.  The reprimand states that the applicant was informed by co-workers that
outbound procedures required a baggage inspection prior to leaving.  The
reprimand continues that on 11 October 2003, the inspectors found
classified materials in the applicant's possession that were not properly
stored.  The reprimand states that the applicant failed to disclose to the
inspectors that he had classified materials and that the inspectors found
more that one hundred pages of materials classified as SECRET.

9.  The Commanding General stated that the reprimand was punitive and
issued as punishment under the provisions of Article 15 of the UCMJ.  The
Commanding General directed that the reprimand be filed on the performance
portion of the applicant's OMPF with the Record of Proceedings under
Article 15, UCMJ.

10.  The applicant's records contain a 27 August 2004 Memorandum for Record
signed by the Commanding General of the Joint Task Force-Guantanamo Bay,
Cuba.  This memorandum stated that the charges preferred against the
applicant on 29 November 2003 were dismissed.

11.  U.S. Army Human Resources Command, Orders Number C-11-524913, dated 2
November 2005, show that the applicant was released from the USAR Control
Group and assigned to the Retired Reserve effective 31 October 2005.  The
orders further showed the reason for the transfer was the applicant had
obtained the maximum age.

12.  The applicant provided numerous e-mails sent between himself, his
defense attorney and the Commanding General that preferred charges against
him.  Many of the e-mails show that there was an ongoing discussion
regarding taking a polygraph test.  These e-mails indicate that the
Commanding General agreed that if the applicant passed a polygraph test the
charges preferred against him would be dismissed and he would accept
punishment under the provisions of Article 15 of the UCMJ and be allowed to
retire from further military service.

13.  The e-mails submitted further show that additional charges were
pending against the applicant for violating the Espionage Act.

14.  The applicant also provided several documents which contain timelines
of events and his statements of facts surrounding the incident.  In each of
these documents, the applicant discusses the "offers and plea"
considerations available.

15.  The applicant also makes several statements regarding security
violations committed by other individuals assigned to the Joint Task Force-
Guantanamo Bay, Cuba.

16.  The applicant provided an e-mail, dated 17 December 2003, from his
defense attorney to the Commanding General which stated that attached was a
formal written offer for a plea agreement.  On 29 December 2003, the
Commanding General rejected the defense attorney's offer and stated that
the applicant could take a polygraph test on his own and the results would
be considered prior to determining if court-martial charges should be
forwarded or an Article 32 hearing should be conducted.



17.  Army Regulation 27-10 (Military Justice) prescribes the policies and
procedures pertaining to the administration of military justice.  Chapter 3
implements and amplifies Article 15, UCMJ.  Paragraph 3-16d (4) provides
that before finding a Soldier guilty, the commander must be convinced
beyond a reasonable doubt that the Soldier committed the offense.

18.  Paragraph 3-18 of the military justice regulation contains guidance on
notification procedures and explanation of rights.  It states, in pertinent
part, that the imposing commander will ensure the Soldier is notified of
the commander's intention to dispose of the matter under the provisions of
Article 15.  It further stipulates the Soldier will be informed of the
following:  the right to remain silent, that he/she is not required to make
any statement regarding the offense or offenses of which he/she is
suspected, and that any statement made may be used against the Soldier in
the Article 15 proceedings or in any other proceedings, including a trial
by court-martial.  In addition, it states that the Soldier will be informed
of the right to counsel, to demand trial by court-martial, to fully present
his/her case in the presence of the imposing commander, to call witnesses,
to present evidence, to request to be accompanied by a spokesperson, to an
open hearing, and to examine available evidence.

19.  Paragraph 3-28 of the military justice regulation provides guidance on
setting aside punishment and restoration of rights, privileges, or property
affected by the portion of the punishment set aside.  It states, in
pertinent part, that 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the Article 15 imposed against him for
failing to properly secure classified information should be removed from
his records.

2.  Although charges that were preferred against the applicant for failure
to properly secure classified documents were dismissed, the preponderance
of the evidence shows that the charges were dismissed as a result of an
agreement between the Commanding General and the applicant's defense
attorney.



3.  The applicant signed and accepted the punishment imposed under the
provisions of Article 15 of the UCMJ and acknowledged receipt of the
General Memorandum of Reprimand.  Evidence further shows that the applicant
did not demand a trial by court-martial or appeal the punishment imposed.

4.  By regulation, there must be clear and convincing evidence of an error
or injustice to support removal of a properly completed, facially valid
Article 15 from a Soldier’s record by the ABCMR.

5.  There is no evidence that the applicant's rights were violated during
the imposition of the Article 15 or the processing of the General Officer
Memorandum of Reprimand.  Further, the evidence of record confirms these
actions were accomplished in accordance with the applicable law and
regulation, and that the rights of the applicant were fully protected
throughout these processes.

6.  By regulation, before finding a Soldier guilty during Article 15
proceedings, the commander must be convinced beyond a reasonable doubt that
the Soldier committed the offense.  The evidence of record confirms the
applicant waived his right to a trial by court-martial and opted for a
closed hearing.  After considering the available evidence, the applicant's
commander found him guilty of the alleged misconduct.

7.  The Article 15 regulatory standard further requires the commander to be
convinced beyond a reasonable doubt before he found the applicant committed
the offense, which is the same high standard required of courts-martial
panels and judges sitting alone as triers of fact prior to entering
findings of guilt.

8.  Based on the foregoing, there is no evidence and the applicant has not
provided sufficient evidence that the Article 15 was improperly or unjustly
administered.  Absent such evidence, there is no basis to grant the request
for removal of the Article 15.

9.  The applicant also contends that his Top Secret Security Clearance
should be restored based on the fact the court-martial charges preferred
against him were dismissed.  However, the evidence of record confirms the
applicant agreed to accept an Article 15 rather than undergo a trial by
court-martial.  Further, the Article 15 he accepted confirms his commission
of the security violation that likely led to his losing his security
clearance.  Absent evidence that exonerates him from committing the
security violation in question, there is an insufficient evidentiary basis
to support granting the requested relief related to restoration of his
security clearance.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_RTD____  _RMN___  _DAC__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented does not demonstrate the
existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.





                                       Richard T. Dunbar__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(NC, GRANT , DENY, GRANT PLUS)          |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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