RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 January 2008
	DOCKET NUMBER:  AR20070008244 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Ms. Shirley L. Powell

Chairperson

Mr. Paul M. Smith

Member

Mr. Larry C. Bergquist

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 that his Article 15, DA Form 2627, dated 14 January 2007 be expunged from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that his Article 15 was not properly imposed nor was his evidence properly reviewed.  He was denied access to exculpatory evidence, his commander did not have jurisdiction to impose the Article 15, and he was not allowed the opportunity to appeal the Article 15.  He never received a copy of the Letter of Reprimand.  He has exhausted all options to try and get his records corrected prior to leaving active duty and at every turn he was denied the opportunity to have it corrected.  He has over 25 years in the Army and he is appalled at the way he was treated.  He believed the only just resolution is to correct his OMPF by removing the Article 15.

3.  The applicant provides:

     a.  a copy of a memorandum for record, dated 6 May 2007, which explains why his Article 15 was unjust; 

     b.  a copy of an Article 15, dated 14 January 2007;

     c.  a copy of two memoranda for record from Senior Defense Counsel, Fort Benning, Georgia, dated 6 May 2007 and Senior Defense Counsel, Camp Arifjan, Kuwait dated 9 May 2007; 

     d.  a copy of his Mobilization Orders M-10-602462 dated 10 October  
2006, Temporary Change of Station (TCS) Orders 298-1176 dated 25 October 2006, and Release from Active Duty (REFRAD) Orders 093-2222 dated 3 April 2007;

     e.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty);

     f.  a copy of a memorandum with Subject:  Withholding of Disposition Authority – Officer, Warrant Officer and Senior Non-Commissioned Officer Misconduct dated 19 October 2004;

     g.  a copy of an extract from Army Regulation 27-10 (Military Justice), Appendix B dated 16 November 2005;

     h.  a copy of two memoranda from Senior Defense Counsel, Camp Arifjan, Kuwait and the applicant dated 28 December 2006;

     i.  a copy of three pictures that show the applicant's injuries he said he sustained on December 2006, which he claims were similar to his fall on  
17 November 2006;

     j.  a copy of an extract of his medical records with diagnosis of syncope and hypertension, and DA Form 2173 (Statement of Medical Examination and duty Status); and

     k.  a copy of a computer log which documented his entries for the work period on 18 November 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was appointed a Reserve Commissioned Officer in the Army of the United States in the rank of second lieutenant on 5 August 1983.  He served in various assignments as a Reserve Commissioned Officer.  On 10 June 1994 he was appointed in the rank of captain in the Army National Guard.

2.  On 22 February 1995, the applicant was honorably released from the Army National Guard and transferred to the U.S. Army Reserve Control Group (Reinforcement), St. Louis, Missouri.  On 3 February 1996, he was promoted to the rank of major and on 19 January 2004 to the rank of lieutenant colonel.

3.  On 21 October 2006, the applicant was ordered to active duty in support of Operation Enduring Freedom.  On 27 October 2006, his TCS orders show he was assigned to Headquarters, Command Post, Combined Joint Task  
Force-Horn of Africa (CJTF-HOA) at Camp Lemonier, Djibouti with duty in the Sudan.  

4.  The additional instructions from his TCS orders, provides that during his period of deployment the gaining/deployed unit commander had responsibility for personnel service support to include awards and decorations, Uniform Code of Military Justice (UCMJ), and all other forms of personnel and legal administration support except Reserve Component promotion authority.

5.  On 14 January 2007, the commander of CJTF-HOA imposed Nonjudicial Punishment (NJP) against the applicant for misconduct for failure to return to Camp Lemonier before curfew on 17 November 2006, a violation of Article  
92; consuming more than three alcoholic drinks while on liberty in Djibouti City, a violation of Article 92; making a false official statement to a commissioned officer in that he stated he did not consume more than two alcoholic drinks, a violation of Article 107; being drunk in public both inside and outside of Camp Lemonier on 17/18 November 2006, a violation of Article 133; failure to perform his assigned duties on 18 November 2006 due to being sick in quarters as a result of drunkenness, a violation of Article 134; and failure to return to Camp Lemonier before curfew on 17 November 2006, a violation of Article 86.  The punishment imposed was a Letter of Reprimand, 45 days of restriction, and a forfeiture of 1/2 of 1 month's pay.

6.  The applicant's records show that he refused to initial/sign in block 7a of the DA Form 2627 which would indicate to the commander his options to appeal or not to appeal the imposed punishment.

7.  The applicant's records show that several voluntary statements were made that attest that he missed curfew on 17 November 2006 because he was intoxicated.  Also, that he fell as he exited from a taxicab right outside of the gate of the Camp.  His escort opted not to return the applicant to Camp, because it would have been an embarrassment to the applicant and the command.  Therefore, he took him to a hotel downtown where he spent the night.  He reported to Camp the next morning still dazed and he smelled like alcohol.  He was questioned and taken to the emergency medical facility for a fit for duty evaluation.  He was then asked how many drinks he consumed the night before and he initially stated 5 drinks but he later changed that response to "I believe  
1-2 drinks."

8.  A review of the applicant's OMPF contains a copy of a sworn transcript from a video interview between the applicant and an investigating officer, and a copy of an incident report.  These documents addressed the incident that pertains to the applicant missing curfew on 17 November 2006 due to being intoxicated and his fitness for duty evaluation from the emergency medical facility.  On 18 November 2006, the applicant was found unfit for duty and was placed on sick in quarters status for 12 hours.

9.  A memorandum from CJTF-HOA, with the Subject:  General Order on Alcohol dated 5 April 2005, provides that the General Order on Alcohol applies to all military and civilian personnel assigned or attached to CJTF-HOA, and/or operating in the Combined Joint Operating Area (CJOA).  This General Order stated that given the clear and present danger of a terrorist attack in the CJOA, all military and civilian personnel assigned or attached to CJTF-HOA, or operating within the CJOA, remain on duty and responsible for their behavior at all times.

10.  In the memoranda from the Senior Defense Counsel, Camp Arifjan, Kuwait and from the Senior Defense Counsel, Fort Benning, Georgia, it was attested that the applicant wanted to be sure the Article 15 with Letter of Reprimand wasn't placed in his OMPF before he had an opportunity to appeal.

11.  The memorandum with Subject:  Withholding of Disposition  
Authority – Officer, Warrant Officer and Senior Non-Commissioned Officer Misconduct, states that the Commanding General of the United States Army Forces Central Command (USARCENT)/Coalition Forces Land Component Command (CFLCC) Area of Responsibility, withholds authority to determine the disposition of cases of alleged misconduct by and/or charges preferred or to be preferred upon, all officers, warrant officers, and senior non-commissioned officers in the grade of E-9 and above, assigned, attached or otherwise coming under the authority of this command.  In all instances of alleged misconduct by the Soldiers mentioned the unit commander to which the Soldier is assigned will immediately notify the Third U.S. Army/ARCENT/CFLCC Staff Judge Advocate and Provost Marshal. 

12.  A memorandum from the Commanding General United States Central Command dated 1 May 2004 provides that the commander CJTF-HOA, is the commanding officer of a "separate or detached command or group of detached units of any of the armed forces" and accordingly may convene special and summary courts-martial and is authorized to convene special and summary courts-martial for the trial of members of other U.S. Armed Forces serving within CJTF-HOA.

13.  The extract of the applicant's medical records show that he was evaluated for hypertension, syncope, and severe degenerative vertebrae at C4-5, C5-6, and C6-7.  His DA Form 2173 shows that his medical conditions occurred while he was on active duty in the line of duty.  However, this form did not state that as a result of his medical conditions he was unable to make curfew on 17 November 2006.

14.  Syncope (faint) is a sudden fall of blood pressure resulting in loss of consciousness. 

15.  The copy of the computer log that the applicant submitted only shows the majority of the logon/logoff entries for that day came from the computer server and not the applicant.
16.  In a conversation between a member of the Board's Staff and a representative from 3rd USARCENT, it was stated that a legal advisor from CENTCOM had informed/coordinated through the appropriate channels for the commander of CJTF-HOA to have authority to adjudicate the applicant's case and to serve as appellate authority to an appeal.

17.  On 5 November 2007, a copy of this conversation was forwarded to the applicant for his rebuttal.

18.  On 26 November 2007, the applicant responded via email stating that "Commander, 3rd Army/ARCENT/CFLCC was advised in clear error." He adds, in effect, he was assigned to "WAT3AA 1 HQ CPS HHC I Corp, Fort Lewis, Washington 98433" as were seven other Soldiers from the same assignment.  The commander had dispersed the Soldiers throughout his (the commander's) unit to perform duties not in accordance with their activation or under his (the applicant's) command.  As such, he was not subject to NJP (by his commander). Also, the NJP is not the same subject matter jurisdiction as the UCMJ and Article 15s do not fall into the UCMJ.

19.  He further states that he suffered medical emergencies on 18 November and 6 December 2006.  The commander of CJTF-HOA failed to provide even basic medical service but pursued a course of action outside the rule of regulation and law.  The entire process of the Article 15 and filing in his OMPF is outside any possible legal reasoning or justification and inured to the benefit of third party self-interest.

20.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Chapter 3 states that a commander will personally exercise discretion in the non-judicial process by evaluating the case to determine whether proceedings under Article 15 should be initiated; to determine whether the soldier committed the offense(s) where Article 15 proceedings are initiated and the soldier does not demand trial by court-martial; and to determine the amount and nature of any punishment if punishment is appropriate.

21.  Army Regulation 27-10, paragraph 3-7(b), states, that a multi-service commander or officer in charge, to whose command members of the Army are assigned or attached, may impose nonjudicial punishment upon such Soldiers.  A multi-service commander or officer in charge, alternatively, may designate one or more Army units and will for each such Army unit designate an Army commissioned or warrant officer as commanding officer for the administration of discipline under the UCMJ, Article 15.  A copy of such designation will be furnished to Criminal Law Division, ATTN:  DAJA-CL, Office of The Judge Advocate General, HQDA, 1777 North Kent Street, Rosslyn, VA 22209-2194.  A multi-service commander or officer in charge, when imposing nonjudicial punishment upon a military member of their command, will apply the provisions of this regulation.

22.  Army Regulation 27-10, paragraph 3-29(a)(b), further states, that only one appeal is permissible under Article 15 proceedings.  An appeal not made within a reasonable time may be rejected as untimely by the superior authority.  A reasonable time will vary according to the situation.  However, an appeal (including all documentary matters) submitted more than 5 calendars days after the punishment is imposed will be presumed to be untimely, unless the superior commander, in the superior commander's sound discretion for good cause shown, determines it to be timely.  If at the time of imposition of punishment, the Soldier indicates a desire not to appeal, the superior authority may reject a subsequent election to appeal, even though it is made within the 5-day period.

23.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket (MPRJ), the Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his Article 15 dated 14 January 2007 should be expunged from his OMPF.

2.  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded that the Article 15 was appropriately filed in the OMPF as directed by the commander of CJTF-HOA.

3.  According to the memorandum from the Commanding General from the United States Central Command dated 1 May 2004, the authority was given to the commanders of CJTF-HOA of a separate or detached command or group of detached units to convene special and summary courts-martial for trial of members of other U.S. Armed Forces serving within CJTF-HOA.  

4.  The applicant's TCS orders provides that during the deployment the gaining/deployed unit commander had responsibility for Personnel Service Support to include UCMJ and all other forms of personnel and legal administration support.

5.  Furthermore, based on the email conversation between a member of the Board's Staff and a Staff Judge Advocate from 3rd USARCENT a legal advisor at CENTCOM coordinate through the appropriate channel for the CJTF-HOA commander to adjudicate the applicant's case and to serve as the appellate authority to an appeal.  

6.  Therefore, the commander of another service had the authority to impose the Article 15 against the applicant.

7.  The applicant's claim that he didn't have the opportunity to appeal the Article 15 within 5 days is noted.  However, the evidence shows that the applicant refused to initial/sign in block 7a of the DA Form 2627 which would indicate to the commander the applicant's desire to appeal or not appeal. 

8.  The applicant did submit evidence that his defense attorneys had an understanding with the servicing Staff Judge Advocate that the applicant would have 5 days from the time he received a copy of the Article 15 reprimand to appeal, notwithstanding his apparent refusal to make the election on the form.  Apparently, the applicant did not receive the reprimand by April of 2007, when he was released from active duty.  The Article 15 ultimately was filed in his OMPF without the applicant's appeal.  As specified by Army Regulation, if at the time of imposition of punishment, the Soldier indicates a desire not to appeal; the superior authority may reject a subsequent election to appeal, even though it is made within the 5-day period.

9.  The Board acknowledges that miscommunication and an apparent lack of diligence by the applicant's first defense counsel may have contributed to the applicant's inability to file a timely appeal.  However, these facts alone do not require a removal of the Article 15.  The applicant must show that he has been unfairly or unjustly prejudiced by the Article 15 and its placement in his OMPF.  In this regard, the Board, after examining the applicant's presentation and the evidence in the case has determined that the Article 15 is supported by the evidence and should be filed in his OMPF.  In short to the degree the applicant may have been deprived of an appellate review, the Board's review fulfills that function.


10.  While the applicant has submitted documents which show that he has been diagnosed with syncope, there is no evidence to corroborate the applicant's contention that his drunken behavior was due to him falling when he fainted.  The preponderance of evidence shows hat he was drinking alcohol beverages on the night in question, he drank more than what was authorized by General Orders, and he became intoxicated.  Further, the evidence shows he violated curfew and checked into a hotel rather than risk detection by guards at the gate.  Given that evidence, it would appear that the applicant was properly offered nonjudicial punishment.

11.  As for the removal of the Article 15 from the performance section of the OMPF, once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities.  Therefore, since the applicant has not shown that his Article 15 was improper or unjust, the applicant is not entitled to correction of his records to remove the Article 15 from the performance section of the OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LCB__  __PMS__  __SLP ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_____Shirley L. Powell____
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080129
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.