RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  5 June 2008
	DOCKET NUMBER:  AR20080003746 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 the Article 15 dated 14 March 2004 be removed from his Official Military Personnel Records (OMPF).  

2.  The applicant states that his unit was cobbled together at the last minute from six States.  They never trained together.  When he got to the theater, one major piece of equipment, a HMMWV (High Mobility Multipurpose Wheeled Vehicle), was missing; it never made it to the debarkation point.  The unit was never scheduled to be in the war zone.  They accomplished their mission despite horrendous conditions – 130 degree heat; two small bottles of water per day for washing, drinking, and sanitation; and constant enemy shelling.  They had a second HMMWV stolen, probably by active duty American Soldiers.  They eventually recovered this vehicle.

3.  The applicant states that his span of control crossed country borders and included numerous remote locations.  He could not personally superintend those scattered outposts.  Even cell phones failed to work across the Iraq/Kuwait border.  When he was ready to return home, he got an Article 15, mainly for failure to account for all equipment.  It reflects the distressing reality of one law for the “rich” and another for the “poor.”  The contractors get rich in the air-conditioned Green Zone.  Meanwhile, simple Soldiers, sweating in the desert, experience ruined careers for matters far above their pay grade.

4.  The applicant provides the documents listed on the Binder – Table of Contents:

	Tab 1 – Brief in Support of Application Redress;

	Tab A – Map of Area of Operations;

	Tab B – Memorandum for Record (MFR) of 2 April 2003 following Battalion Staff Meeting;

	Tab C – MFR of 1 May 2003 after conversation with LTC (Lieutenant Colonel) S___, Battalion Commander;

	Tab D – MFR of 1 June 2003 draft after conversation with MAJ (Major) K___;

	Tab E – Lessons Learned on What Went Right/Wrong drafted by 233rd QM (Quartermaster) Soldiers; and

	Tab F – Termination of Elimination Actions from CG (Commanding General), HRC (U. S. Army Human Resources Command)/Recommendation Letter from CG, USARRC (U. S. Army Regional Readiness Command), Statement from LSU (Logistics Support Unit) Commander, COL (Colonel) C___.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the Article 15 dated 14 March 2004 be removed from the applicant’s records.

2.  Counsel states that the precise “knock” against the applicant lies in the questionable claim that he failed to secure and properly account for a handful of items during Operation Iraqi Freedom.  The amount claimed is about $250,000.  That figure ignores the fact that the items were extremely aged and must reflect depreciated values.  Incidentally, other competent company grade officers have been held liable for similar losses.  No seniors have been called into account.  As the applicant understands it, the missing items never arrived in country.  

3.  Counsel states that it is impracticable to require garrison-type accountability during a tough desert war.  The applicant’s unit went to war with equipment valued at $1,000,000.00.  Significantly, before they ever arrived in the war zone large items of their equipment “disappeared” aboard (the ship) or were pilfered at the port.  The applicant’s unit arrived in Kuwait and it was not on the TPFDDL (Time-Phased Force Deployment Data List), and no one knew where the unit should be.  In addition, the unit was augmented by Soldiers involuntarily transferred from six other States.  They trained for desert service in freezing New York conditions.  That was individual training – the unit never drilled collectively.

4.  Counsel states that the mission of the applicant’s unit was to provide bulk petroleum to coalition forces.  Because nobody expected them, they often received “tough to handle” tasks nobody wanted.  The first step was to retrieve the unit’s extensive equipment from Port Shuaiba, Kuwait.  There were 743 items.  Disturbingly, important pieces of equipment never arrived.  The unit’s HEMTT (Heavy Expanded Mobility Tactical Truck) was missing and never recovered, also two HMMWVs.  The applicant cannot be blamed for them anymore than a military sponsor can be blamed when the movers pilfer something off the delivery van.

5.  Counsel states that sometime during April-May 2003, the applicant learned that his Soldiers had done what others were doing.  They “liberated” two vehicles and a HEMTT wrecker.  Upon learning of it, the applicant immediately reported this unauthorized act up his chain of command to the battalion commander and 
the battalion operations officer.  The applicant was advised to keep the material since it was being used to accomplish the mission.  The “true owners” were unknown, so the guidance – given on 1 June 2003 – was to keep going forward with the mission and worry about it later.  

6.  Counsel states that, after having served in horrendous living conditions and under battle conditions, the applicant’s unit returned home in November 2003 with all Soldiers alive and over 80 percent of its equipment.  That number was actually commendable, given pilferage at the port, thievery by other units, and larceny by local nationals.  The unit recovered one of its HMMWVs somewhere in the desert.  It apparently had been abandoned by another unit.  The final Logistics Status Report of 4 October 2003 revealed that 697 out of the unit’s 743 pieces of equipment were deemed non-mission capable.  

7.  Counsel states that during demobilization allegations surfaced that unit leaders had lost equipment and/or utilized stolen equipment.  Those allegations were extremely vague and the process highly suspect:

	No Report of Survey was ever performed;

	The applicant was never told what items were missing;

	Nothing even remotely indicates the value of those disputed items or their depreciation – it seemed as if someone made up the numbers;

	The first specification claims that the applicant allegedly abandoned something.  The applicant does not know what.  He adamantly denies leaving anything valuable behind beyond what he was ordered to leave as “stay behind” equipment;

	The second specification alleges that he stole equipment from another unit.  He categorically denies it;

	The third specification claims that he allowed his Soldiers to steal from somebody else.  He totally denies it; and

	The fourth specification alleges that he drew his weapon to quell a potential riot.  He readily responds that he did so in a measured, responsible fashion, and it was entirely appropriate.



8.  Counsel states that when the applicant discovered that the vehicles were missing, he immediately informed higher headquarters, and the applicant provided an MFR to show he informed higher headquarters.  The applicant was never informed of the value of the missing items.  Also, the unit had archaic Vietnam-era equipment.  The depreciation values would be based on age, dating from when the items came into the Army inventory (i.e., 1982 for the HEMTT and 1985 for the HMMWVs).  The applicant never wrongfully appropriated U. S. government equipment and did not know what the investigators were talking about.  After conducting the final inventory before the unit redeployed to the States the applicant did not discover any foreign equipment.  The applicant never authorized Soldiers to take anything.  A noncommissioned officer directed a specialist to scavenge something, but when the applicant found out he responded aggressively.  The applicant found out about the pilfering when the investigating officer informed him.  Maybe the applicant should have known something beforehand, but the war, the lack of communications, and the remote operating sites should be considered.  The applicant immediately notified his chain of command when he discovered the pilfering, and those two Soldiers received Article 15s for their misconduct.  

9.  Counsel states that, regarding the charge of unlawfully wielding of a loaded pistol, no unlawful action occurred.  The applicant never directly pointed his weapon at his Soldiers to break up a fight.  There was a racial issue brewing between the Soldiers who were involuntarily transferred into his unit from West Virginia (white Soldiers) versus inner city Philadelphia (black Soldiers).  They had a limited time frame to move all of their vehicles and equipment.  They were feeling the pressure.  When the applicant returned from a meeting, he saw two Soldiers scuffling.  Apparently, racial remarks had passed between them.  Everyone just stood around and watched them fight.  When it appeared one of the Soldiers was about to pick up a board, the applicant unholstered his weapon and just held it at his side.  Nothing more and nothing less.  If that did not succeed, the applicant was gong to fire warning shots into the air.  The fight ended because the Soldiers saw that the applicant, as their commander, had unholstered his weapon.  He succeeded in stopping what could have been an ugly racial incident.  

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant in the U. S. Army Reserve on 16 December 1993.  He was ordered to active duty in an Active Guard Reserve (AGR) status in 1996.  He was promoted to captain in the Quartermaster Corps on 29 May 2000.  Around January 2003, he was assigned as the company commander, 233d Quartermaster Company, located in Philadelphia, PA.  He and his unit arrived in Kuwait on or about 18 April 2003.

2.  The applicant provided an MFR, dated 28 April 2003, that indicated he briefed his battalion commander and the staff of the 362d Quartermaster Battalion during a staff meeting on the same date, that when his Soldiers went to Shuaiba Port they discovered two vehicles were missing and the HEMTT wrecker was destroyed due to the PTO (power takeoff) line being cut.  The MFR indicated that the battalion commander did not have a solution at the time, but instead he directed the applicant to have his Soldiers go out to the port again and check for the missing vehicles and insisted the applicant’s unit still had the capabilities to move forward north into Iraq.

3.  The applicant provided an MFR, dated 1 May 2003, that indicated he mentioned to his battalion commander on this date that his Soldiers had stolen two vehicles and a HEMTT wrecker to facilitate moving forward to Iraq.  The MFR indicated that, instead of the battalion commander offering a solution to the situation, he turned it back to the applicant to handle it and again insisted that his unit still had the capabilities to move forward into Iraq.

4.  The applicant provided an MFR, dated 1 June 2003, that indicated he mentioned to the battalion S-2/3 officer that his Soldiers had stolen two vehicles and a HEMTT wrecker to facilitate moving forward to Iraq.  The S-2/3 officer told the applicant that it would be OK as long as they were completing their mission.  They would need to return the vehicles after completing the mission.

5.  The applicant was awarded the Army Commendation Medal for exceptionally meritorious service for the period 1 May to 1 October 2003.

6.  The applicant and the main body of his unit departed the theater on or about 21 November 2003.

7.  On 14 March 2004, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully and recklessly engaging in conduct, to wit:  drawing and wielding his loaded 9mm pistol to break up a fight between two Soldiers under his command in violation of Article 134; for disposing of military equipment of a value greater than $60,000 by abandoning it in the desert, without proper authority, on or about and between the months of April 2003 and June 2003; for wrongfully appropriating military vehicles and equipment, of a value of about $250,000, on or about and between the months of April 2003 and June 2003; and for wrongfully soliciting Soldiers under his command to wrongfully appropriate military equipment of a value of about $250,000.  The applicant did not appeal the Article 15.  

8.  In October 2007, the applicant requested that the Department of the Army Suitability Evaluation Board (DASEB) remove the Article 15 or transfer it to the restricted section of his OMPF due to it being untrue and unjust.  On 27 February 2008, the DASEB voted to deny the transfer of the Article 15.  (The DASEB was not permitted to remove the Article 15 from the OMPF.)

9.  Since accepting the Article 15 (and a relief-for-cause Officer Evaluation Report (OER) related to the reasons for which the Article 15 was imposed) the applicant has received five OERs.  All five OERs contain highly commendable comments.  The raters rated his performance and potential for promotion as “Outstanding Performance, Must Promote” on all five OERs.  In his first OER after accepting the Article 15 his senior rater rated his promotion potential as “Fully Qualified.”  In the next four OERs his senior raters rated his promotion potential as “Best Qualified.”

10.  Army Regulation 710-2 (Supply Policy Below the National Level), the version dated 8 July 2005, contained section IX, Wartime Policy.  This section stated that modified table and equipment (MTOE) and deployable table of distribution and allowances (TDA) organizations will account for only organization property.  The using unit commander must know what equipment the unit is authorized, what it actually has, the equipment’s condition, and what is being done to replace shortages.  Accounting for lost, damaged, and destroyed property (other than combat losses) will be under Army Regulation 735-5.  The previous version, which concerned only peacetime conditions, and the earlier, peacetime sections in this version, contained more stringent property accountability controls.

11.  Army Regulation 735-5 (Policies and Procedures for Property Accountability), chapter 12, states that persons responsible for Government property will immediately report all losses or damages to their immediate supervisor or commander.  The report will state, in writing, the circumstances of the loss or damage and a listing and description of the property involved.  When Government property is reported missing, the commander, the primary hand receipt holder, or the accountable officer should cause a preliminary investigation and search to be conducted to ensure the missing property is actually missing before an administrative adjustment document is initiated.  When Army property becomes lost, damaged, or destroyed by causes of other than fair wear and tear, one of several administrative actions will be taken to determine the facts concerning the incident and the amount of the loss to the Government, to assess financial liability if appropriate, and/or provide relief from responsibility and accountability.  One of those administrative actions is a Report of Survey.


12.  The Manual for Courts-Martial, United States, states Reckless Endangerment is an offense under Article 134 of the UCMJ.  The elements are (1)  that the accused did engage in conduct; (2)  that the conduct was wrongful and reckless or wanton; (3)  that the conduct was likely to produce death or grievous bodily harm to another person; and (4)  that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.  “Reckless” conduct is conduct that exhibits a culpable disregard of foreseeable consequences to others from the act or omission involved.  The accused need not intentionally cause a resulting harm or know that his conduct is substantially certain to cause that result.  The ultimate question is whether, under all the circumstances, the accused’s conduct was of that heedless nature that made it actually or imminently dangerous to the rights or safety of others.

13.  Army Regulation 27-10 (Military Justice) states that enlisted Soldiers (E-5 and above) and officers may petition the DASEB for transfer of records of nonjudicial punishment from the performance to the restricted section of the OMPF.  To support the request, the person must submit substantive evidence that the intended purpose of the Article 15 has been served and that the transfer is in the best interest of the Army.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contended that it is impracticable to require garrison-type accountability during a tough desert war.  The Army recognizes that fact, which is why when the governing regulation was updated it included a section on wartime policies.  It cannot be verified that the wartime policy was in effect at the time of the applicant’s deployment in early 2003; however, even the less stringent accountability measures required by wartime policy still require that the using unit commander know what equipment the unit is authorized, what it actually has, what the equipment’s condition is, and what is being done to replace shortages.  The less stringent accountability measures still require that accounting for lost, damaged, and destroyed property (other than combat losses) be performed under the provisions of Army Regulation 735-5.  

2.  Counsel contended that the applicant’s unit went to war with equipment valued at $1,000,000.00, and before they ever arrived in the war zone large items of their equipment “disappeared” aboard (the ship) or were pilfered at the port.  He contended that the unit’s HEMTT and two HMMWVs were missing, and the “applicant cannot be blamed for them anymore than a military sponsor can be blamed when the movers pilfer something off the delivery van.”

3.  Counsel contended that no Report of Survey was ever performed, that the applicant was never told what items were missing, and that nothing even remotely indicated the value of those disputed items or their depreciation.

4.  However, if the applicant had followed regulatory guidance (and, as a Quartermaster officer, he should have been familiar with the two primary supply regulations governing this type of situation), he should have known that he, as the commander and most likely also the primary hand receipt holder, should have caused a preliminary investigation and search to be conducted to ensure the missing property was actually missing before an administrative adjustment document was initiated.  Once he verified that the equipment actually was missing then he should have initiated the Report of Survey.  The Report of Survey that he should have initiated would have determined the facts concerning the loss of the equipment and the amount of the loss to the Government.

5.  Counsel contended that when the applicant discovered that the vehicles were missing he (the applicant) immediately informed higher headquarters, and the applicant provided an MFR to show he informed higher headquarters.  Again, if the applicant had followed regulatory guidance he should have known that a written report was required, not an MFR of a verbal briefing at a staff meeting.

6.  Counsel contended that when the applicant learned that his Soldiers had “liberated” two vehicles and a HEMTT wrecker he immediately reported this unauthorized act up his chain of command to the battalion commander and the battalion operations officer.  Counsel contended that the applicant was advised to keep the material since it was being used to accomplish the mission, and the applicant made an MFR to that effect.  However, there is no other evidence to corroborate the information contained in that MFR.  Moreover, the applicant was the company commander of those Soldiers.  He had the authority to impose nonjudicial punishment on or even just give a written reprimand to those Soldiers immediately.  Such an immediate punishment would have served as corroboration that he recognized the actions of those Soldiers to be unauthorized and illegal.  He did not have to wait for his chain of command to do anything about it.  (Presumably, when he stated the Soldiers received an Article 15 he meant they received a field grade Article 15 from the battalion commander.)

7.  If the applicant adamantly denied leaving anything valuable behind beyond what he was ordered to leave as “stay behind” equipment; and categorically denied that he stole equipment from another unit, and totally denied that he allowed his Soldiers to steal from somebody else, and believed that his drawing his weapon to quell a potential riot was entirely appropriate, then he had the option to demand trial by court-martial.

8.  Counsel contended that, regarding the charge of unlawfully wielding a loaded pistol, no unlawful action occurred.  He contended that the applicant never directly pointed his weapon at his Soldiers to break up a fight.  He contended that when the applicant returned from a meeting he saw two Soldiers scuffling and apparently racial remarks had passed between them.  He contended that when it appeared one of the Soldiers was about to pick up a board the applicant unholstered his weapon and just held it at his side and, if that did not succeed, the applicant was gong to fire warning shots into the air. 

9.  This Board will not substitute its judgment for that of the commander who was closer to the time and scene of the incident.  However, it is noted that the applicant did not contend that he attempted to use his authority as the company commander to order the Soldiers to break up the fight.  From the statements given by the applicant’s counsel, the applicant’s first recourse was to unholster his pistol, an act that could very well have been misinterpreted given the pressure everyone was under and inflamed the situation.  Contrary to counsel’s contention, the applicant’s actions do appear to have been in very bad judgment and also unlawful under Article 134 of the UCMJ.

10.  The above being said, however, it is also noted that the applicant received five OERs in the four years after he received the Article 15.  All of the OERs contain highly commendable comments.  The raters in all of five of the OERs rated his performance/potential with the highest rating.  In four of the five OERs the senior rater rated his promotion potential with the highest rating.  

11.  Despite the applicant’s continued denial that he did anything wrong (even where it appears he does not see that his failure to follow regulatory guidance may have contributed to some of the incidents that led to the Article 15), and notwithstanding the findings of the DASEB, there appears to be a valid argument that the intended purpose of the Article 15 has been served.  It appears that it would be equitable at this point in time to transfer the Article 15 to the restricted section of the applicant’s OMPF.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xxx___  __xxx___  __xxx___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the Article 15 dated 14 March 2004 and any related documents to the restricted section of his Official Military Personnel File.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the Article 15 dated 14 March 2004 from his Official Military Personnel Records.



      __xxxxxxxxxxxx__
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080003746


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508