IN THE CASE OF:	  

		BOARD DATE:	       16 December 2008

		DOCKET NUMBER:  AR20080008520 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his military records to remove three records of nonjudicial punishment (NJP) and a Noncommissioned Officer Evaluation Report (NCOER) from his Official Military Personnel File (OMPF).  He further requests that if these documents cannot be removed that they be moved to the restricted section of his OMPF.

2.  The applicant states, in effect, that he received NJP for filing a false claim; for domestic violence and destruction of government property; and for wearing unauthorized badges on his uniform.  He also received an NCOER that reflects his misconduct.  The applicant served for more than 2 years after his misconduct and was discharged with an honorable characterization of service.  He has since enlisted in the Army National Guard.  These three NJP and poor NCOER are keeping him from being promoted.

3.  The applicant provides copies of his Certificate of Release or Discharge from Active Duty (DD Form 214), NJPs (DA Form 2627), NCOER, awards, orders, and two statements of support.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, correction of the applicant's military records to remove three NJPs and one NCOER from his OMPF.

2.  Counsel states, in effect, that The Adjutant General and Chief, Tennessee Army National Guard, will not review matters that were determined while the applicant was serving on active duty.  Counsel states that these documents are hurting the applicant's career.

	a.  Counsel states that two of the three NJPs were based on unproven conduct and that they do not properly reflect the character of his service.

	b.  Counsel states that the NCOER was based on the insufficient evidence used in support of two of the three NJPs.

	c.  Counsel contends that the applicant should not have received NJP on 23 February 1999 for filing a claim for lost property because his action was not criminal in nature.

	d.  With regard to NJP received on 27 March 2001, counsel contends that the applicant does not deny assaulting his wife and damaging government property (door in his government quarters).  He believes that the charges do not properly reflect the events that took place at that time.  He is still married to his wife and they have worked out their problems.  The local authorities did not convict him of the assault.  His wife rebuts much of the characterization of this incident and it does not reflect the character of his service.

	e.  Counsel contends that the charges, dated 23 March 2001, and subsequent NJP that the applicant received on 18 April 2001, are deficient for two reasons.  First, the applicant denies these charges and was authorized to wear the badges he had on his uniform.  Second, the command should have had all relevant charges on a single NJP instead of two separate NJPs.  Counsel argues that when a commander determines that NJP is appropriate for a particular service member, all known offenses determined to be appropriate for disposition by NJP and ready to be considered at that time, including all offenses arising from a single incident or course of conduct, will ordinarily be considered together and not made the basis for multiple punishments.

	f.  Counsel contends that the NCOER received by the applicant on 1 May 2001 was designed to end his career.  Counsel states that the underlying misconduct did not warrant the destructive NCOER.

	g.  Counsel contends that he NJPs and NCOER do not properly reflect the applicant's character of service during this time as evidenced by his promotion to staff sergeant on 18 January 2002.  Counsel asks, "If his character of service was so derogatory that he received a career-ending NCOER in May 2001, why did he get promoted in January 2002?"

	h.  Counsel states that the applicant contends that the applicant's rights of due process under Army Regulation 623-205 (Enlisted Evaluation Reporting System) and Army Regulation 27-10 (Military Justice) were violated and that the subject NJPs and NCOER should be removed from his OMPF.

3.  Counsel provides no additional documentation.

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 21 April 1992, the applicant enlisted in the Regular Army.  He completed his initial training and was subsequently awarded military occupational specialty (MOS) 19K (Armor Crewman) and 31C (Radio Operator/Maintainer).

3.  On 3 February 1999, the applicant was informed of contemplated NJP for preparing and submitting a voucher for payment of a claim against the United States Government in the amount of $22,125.00, of which an amount in excess of $4,000.00 was then known by the applicant to be false and fraudulent.  On 23 February 1999, the applicant indicated that he was afforded the opportunity to consult with counsel.  He chose not to demand trial by court-martial, to have a closed hearing, and to not have a person speak on his behalf.  He also indicated that matters in defense, mitigation, and extenuation were attached.  He subsequently accepted NJP.  The commander found him guilty.  The punishment was 30 days of extra duty.  The imposing commander directed filing of the NJP in the applicant's restricted section of his OMPF.  The applicant did not appeal the punishment.

4.  On 20 March 2001, the applicant was informed of contemplated NJP for damaging government property and assaulting his spouse.  On 27 March 2001, the applicant indicated that he was afforded the opportunity to consult with counsel.  He chose not to demand trial by court-martial, to have a closed hearing, and to not have a person speak on his behalf.  He also indicated that matters in defense, mitigation, and extenuation were not presented.  He subsequently accepted NJP.  The commander found him guilty.  The punishment included reduction to sergeant, pay grade E-5 (suspended); forfeiture of $928.00 pay per month for 1 month (suspended); and 30 days extra duty.  The imposing commander directed filing of the NJP in the applicant's restricted section of his OMPF.  The applicant did not appeal the punishment.

5.  On 9 April 2001, the applicant was informed of contemplated NJP for making a false official statement on 23 March 2001, stating that he was authorized to wear the Combat Infantryman Badge, Parachutist Badge, and Air Assault Badge and for wearing these decorations on his uniform.  On 18 April 2001, the applicant indicated that he was afforded the opportunity to consult with counsel.  He chose not to demand trial by court-martial, to have a closed hearing, and to have a person speak on his behalf.  He also indicated that matters in defense, mitigation, and extenuation were not presented.  He subsequently accepted NJP.   The commander found him guilty.  The punishment included reduction to specialist, pay grade E-4; forfeiture of $827.00 per month for 2 months (suspended); and 45 days extra duty.  The imposing commander directed filing of the NJP in the performance section of his OMPF.  The applicant did not appeal the punishment.

6.  There is no available evidence showing that the applicant appealed to the Department of the Army Suitability Evaluation Board (DASEB) to move the NJP he accepted on 18 April 2001 to the restricted section of his OMPF.

7.  Army Regulation 600-8-104 (Military Personnel Information Management and Records) provides, in pertinent part, that all personnel information recorded under the authority of this regulation is the property of the United States Government.  Once recorded, it will not be removed except as provided by law or this regulation.  Types of authorized military personnel files are the OMPF, Military Personnel Records Jacket, Career Management Individual File, and the Classified Personnel Record.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by one or more of the following:  (1) ABCMR; (2) DASEB; (3) Army appeal boards; (4) Chief, Appeals and Corrections Branch, Human Resources Command; (5) OMPF custodian when documents have been improperly filed; (6) Commander, Human Resources Command, ATTN:  HRC-PDO-PO, as an approved policy change to this regulation; (7) Chief, Appeals Branch, Human Resources Command, St. Louis; and (8) Chief, Appeals Branch, National Guard Personnel Center.  Documents designated for transfer from the performance or service section will be put in the restricted section, if authorized.  When discovered by the custodian or requested by the Soldier concerned, the custodian will transfer those restricted section documents that were mistakenly filed in the performance or service section to the restricted section.

8.  Army Regulation 27-10 provides policy for the administration of military justice.  Chapter 3 provides that nonjudicial punishment is appropriate in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate, and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.  The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believed to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.  The command must be convinced beyond a reasonable doubt that the Soldier committed the offense before finding the individual guilty.  Absent compelling evidence to the contrary, a properly completed, facially valid NJP (DA Form 2627) will not be removed from a Soldier's record by the ABCMR.

9.  On 11 May 2001, the applicant was forwarded an annual NCOER for the 
12-month period from May 2000 through April 2001.  He was evaluated in MOS 19D3O as a section sergeant in a cavalry troop forward operations reconnaissance/anti-tank platoon.

10.  Part IVa (Values/NCO Responsibilities), of the contested NCOER, reflects that the applicant had failed to exhibit satisfactory values in five of the seven areas rated.  The bullet comments stated, "conducted himself in an unethical manner"; "placed personal interest ahead of Army"; and "dishonest to peers and subordinates."

11.  The contested NCOER further reflected that the applicant had performed successfully in the areas of competence and training   However, it also showed that he needed improvement in the areas of physical fitness and military bearing, leadership, and responsibility and accountability.  In physical fitness and military bearing, the evaluation indicated that he exhibited a loss of emotional control that resulted in an alcohol-related domestic dispute.  In leadership, the evaluation indicated that he set a poor example by wearing unauthorized special skill and combat badges.  In the area of responsibility and accountability, the evaluation indicated that he had lied under oath to the squadron commander.  His rater evaluated his overall potential as marginal.  The senior rater's bullets stated, "do not promote"; "do not send to additional NCOES courses"; "this individual is dishonest and should not be granted the honor of leading Soldiers"; and "has reached his full potential."  The senior rater evaluated his overall performance and overall potential as poor.

12.  There is no available evidence showing that the applicant requested a commander's inquiry regarding the subject NCOER.

13.  Army Regulation 623-205, as in effect at the time, set forth the policies and procedures for the enlisted evaluation reporting system.  It provided, in pertinent part, that an evaluation report accepted for inclusion in the official record of a Soldier was presumed to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  It further provides that the burden of proof rests with the individual and that he must produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

14.  On 19 May 2003, the applicant was discharged.  He had attained the rank of staff sergeant, pay grade E-6, and had completed 11 years and 29 days of creditable active duty.  The narrative reason for his separation was for completion of required active service.  He was given a reentry code of 1.

15.  The applicant submitted a copy of Permanent Orders 192-24, United States Army Infantry Center, Fort Benning, Georgia, dated 7 October 1992, awarding him the Parachutist Badge based on successful completion of the Basic Airborne Course.  However, he did not provide, or even mention, the subsequent revocation of this badge by Permanent Orders 230-22, United States Army Infantry Center, Fort Benning, Georgia, dated 4 December 1992.

16.  The applicant provided an unsigned statement from his spouse, dated 11 October 2007, stating that she had initiated the physical portion of their fight, that the applicant was not charged with domestic violence, that the applicant was charged with the destruction of government property, and that the applicant had repaired the damage.

17.  The applicant provided a statement, dated 13 March 2008, from his former commander who had imposed NJP on him on 18 April 2001 stating that the applicant has matured a great deal in the last 7 years.  He has become a master gunner with the Tennessee Army National Guard and according to his NCOER's has also become a very good leader.  The former commander believes that the applicant has learned that being a good leader takes hard work.  The former commander also thinks that the applicant understands that his hard work will earn him awards and recognition.  This is important since that was the reason for his punishment.  The former commander states that the applicant is moving forward in his career and removing this NJP from his OMPF would improve his chances for promotion. 

DISCUSSION AND CONCLUSIONS:

1.  All three NJP's were properly imposed against the applicant in accordance with the applicable laws and regulations in effect at the time, with no indications of any procedural errors that may have jeopardized his rights.

2.  The evidence also suggests that, in each of the three NJPs, he was afforded due process, in that he was given the opportunity to consult with counsel and to elect trial by court-martial in lieu of accepting NJP.

3.  The applicant accepted each of the three NJP's in lieu of demanding trial by court-martial and furthermore, did not appeal the punishment to a higher authority.

4.  There is no available evidence showing that the applicant appealed to the DASEB while on active duty to move the NJP he accepted on 18 April 2001 to the restricted section of his OMPF.

5.  Although the former commander contends that the applicant simply had to learn to appreciate the benefits of hard work and is now deserving of having the record of his misconduct (the wearing of unauthorized badges) removed from his OMPF.  This misconduct is more indicative of the applicant's lack of integrity and honesty, not his ability to appreciate hard work.

6.  The applicant has not provided any compelling evidence showing that the subject NJPs were unjust or that he did not commit the offenses for which punished.  Furthermore, there is no evidence showing that the punishments were disproportionate to the offenses involved.

7.  The unsigned statement from the applicant's spouse hardly outweighs the fact that the applicant accepted NJP for an aggravated assault, and was found guilty of that offense.

8.  Removal of the three NJPs would, in effect, place the applicant on a level playing field with Soldiers with similar years of service whose careers have not been marred by incidents of such inappropriate behavior.

9.  The applicant has failed to provide sufficient, relevant, and convincing evidence showing that the rater's evaluations and comments in the subject NCOER are inaccurate or unjust and should be changed.

10.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

11.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.


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      _________________________
                 CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080008520



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ABCMR Record of Proceedings (cont)                                         AR20080008520



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