IN THE CASE OF:	  

		BOARD DATE:	        15 January 2009

		DOCKET NUMBER:  AR20080016404 


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 the transfer of his DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from the performance portion to the restricted portion of his Official Military Personnel File (OMPF), an upgrade of his reentry eligibility (RE) code, and a personal hearing.

2.  The applicant states, in effect, that he believes that the Article 15 has served its purpose and that he has learned the lessons from that incident.  He adds that if the Article 15 is moved to the restricted portion of his OMPF, and his RE code is upgraded, he would be able to enlist in the U.S. Army Reserve (USAR) and serve out the remainder of his military career.  He also states that he cannot get hired by companies because they require an honorable discharge in order to be considered for employment.  He concludes that he will be deploying to Iraq on or around 15 November 2008 as a Army Defense Contractor and requests the Board notify him as soon as possible so that he can find an attorney to represent him in case he is not able to redeploy out of country to attend the Board when granted.

3.  The applicant provides a self-authored statement, dated 6 October 2008; a copy of his Officer Record Brief (ORB), dated 27 February 2008; a copy of his official photograph; a resume; and copies of official documents filed on his OMPF, to include his awards and decorations, certificates, Officer Evaluation Reports, DD Forms 214 (Certificate of Release or Discharge from Active Duty), Academic Evaluation Reports, and other documents in support of his application.


CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant's records show he was appointed as a second lieutenant in the Field Artillery (FA) of the USAR with concurrent call to active duty and executed an oath of office on 25 September 1997.  He subsequently entered active duty and completed the FA Officer Basic Course.  He was promoted to first lieutenant on 25 March 1999 and captain on 31 October 2001 and was branch-transferred into Military Intelligence (MI).  He was honorably released from active duty for miscellaneous/general reasons and transferred to the USAR Control Group (Reinforcement) on 12 February 2003.

2.  The applicant's records further show he was ordered to active duty on 6 April 2004 for 3 years to fulfill his active duty requirement.  He subsequently served in Iraq from 5 December 2005 to 1 December 2006.  

3.  On 21 February 2007, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for making a false statement with intent to deceive, on or about 29 January 2007; dishonorably failing to pay a debt to another officer, on or about 15 January 2007; and wrongfully having sexual intercourse with that officer, a woman not his wife, on or about 15 December 2007.  His punishment consisted of a forfeiture of $2,491.00 pay per month for two months.  The imposing commander directed the original DA Form 2627 be filed in the performance portion of his OMPF.

4.  On 28 February 2007, the applicant appealed his punishment to the next higher authority; however, on 27 March 2007, his appeal was denied.

5.  The applicant's records further show that he was discharged on 29 February 2008 with a character of service of under honorable conditions (general) in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges) by reason of unacceptable conduct.  The DD Form 214 he was issued shows he completed a total of 11 years, 9 months, and 6 days of active Federal service.  Item 27 (Reentry Code) of this form shows the entry "NA." 

6.  In his self-authored statement, dated 6 October 2008, the applicant states that the Article 15 has served its purpose because it made him take full responsibility for his actions.  He now realizes how many people were affected by his actions and is deeply saddened that his careless actions cost him his stellar career.  He adds that he has sought medical attention for his mild Traumatic Brain Injury (TBI), renewed his faith by attending church twice a week, obtained a tentative USAR slot, reactivated his security clearance, found civilian employment, enrolled in a graduate program, and has attended marital/personal counseling.

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM).  Paragraph 3-43 of Army Regulation 27-10 contains guidance on the transfer or removal of records of nonjudicial punishment (DA Form 2627) from the OMPF.  It states, in pertinent part, that enlisted Soldiers (E-5 and above) and officers may petition the Department of the Army Suitability Evaluation Board (DASEB) for transfer of records of nonjudicial punishment from the performance to the restricted portion 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.

8.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of their military service.  This regulation specified that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  The DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  Chapter 2 of this regulation governs the preparation of the DD Form 214.  Item 27 of the DD Form 214 shows the RE code.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) determines Regular Army (RA) and USAR reentry eligibility and provides regulatory guidance on the RE codes.  These codes are not applicable to officers, U. S. Military Academy (USMA) cadets who fail to graduate or enter USMA from active duty status, or to Reserve Component Soldiers being separated for other than cause. 

9.  Army Regulation 15-185 governs the operation of the ABCMR.  Paragraph   2-11 states, “Applicants do not have a right to a hearing before the ABCMR.  The Director or the Army Board for Correction of Military Records (ABCMR) [panel] may grant a formal hearing whenever justice requires.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant has provided documents that show his commitment to the Army as evidenced by his mostly excellent Officer Evaluation Reports, awards and decorations, service in Iraq, and the positive steps he took after his incident.  Nevertheless, through his actions, as a commissioned officer and leader, the applicant violated the Army's declared code of values and betrayed the Army and its Soldiers as well as his family.  He was accordingly punished and his Article 15 was directed to be filed in the performance section of his OMPF.  The Article 15 is correctly filed in the performance section of the OMPF and the applicant did not provide a compelling and/or convincing reason to move it to the restricted section.  There is no indication of an error or an injustice.

2.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.  

3.  With respect to the applicant's RE code, the governing Army regulation states, in pertinent part, that prior to discharge or release from active duty, individuals will be assigned RE codes, based on their service records or the reason for discharge.  However, an RE code is not applicable to officers.  

4.  With respect to the applicant’s request for a personal appearance, paragraph 2-11, Army Regulation 15-185, states, “Applicants do not have a right to a hearing before the ABCMR.  The Director or the Army Board for Correction of Military Records (ABCMR) [panel] may grant a formal hearing whenever justice requires.”  The applicant in this case submitted sufficient documentary evidence in support of his request.  Therefore, a personal appearance hearing is not warranted.

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  Therefore, he is not entitled to relief.

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.


															XXX
      ______________________
               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)                                         AR20080016404



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ABCMR Record of Proceedings (cont)                                         AR20080016404



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