IN THE CASE OF:	  

		BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090004229 


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 that a DA Form 2627 (Record of Proceedings under Article 15, UCMJ) be transferred to the restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he was told that the DA Form 2627 would be filed in the restricted section of his OMPF; however, he recently looked at his records on-line and found that the DA Form 2627 is filed in the performance section of his OMPF.  He goes on to state that although he still claims that he was falsely accused, he is seeking re-appointment into the Army Reserve and the presence of the record of nonjudicial punishment (NJP) will prohibit him from being promoted. 

3.  The applicant provides a one-page memorandum explaining his application, a copy of a REDD Report, and a nine-page information paper on NJP.

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.  The applicant was commissioned as a United States Army Reserve (USAR) infantry second lieutenant on 28 May 1994 and was ordered to active duty on 4 July 1994.  He completed his training at Fort Benning, Georgia and was transferred to Fort Carson, Colorado for assignment as a platoon leader in a mechanized infantry company.  He was promoted to the rank of first lieutenant on 10 July 1996.

3.  On 24 April 1998, while serving as a mortar platoon leader, the applicant received a relief for cause officer evaluation report (OER) for falsifying an entry on his Expert Infantryman Badge scorecard.  Both the rater and senior rater (SR) (company and battalion commanders) recommended that he not be promoted.  Both the rater and SR also cited the applicant's lack of integrity in their comments.  However, he was promoted to the rank of captain on 1 August 1998.

4.  The applicant was transferred to Fort Jackson, South Carolina on 25 March 1999 for assignment as a training operations officer in a basic training regiment.  On 11 April 2000, he was assigned as a company commander of a basic training company.

5.  On 1 September 2001, the applicant received a relief for cause OER that was directed by the SR (a brigade commander) based on his misconduct involving an improper association with two female Soldiers-in-training (the applicant was married to another service member) and allegations of fraudulently receiving basic allowance for housing.  Both the rater and SR recommended that he not be promoted or retained in service.  The report was referred to the applicant; however, he refused to sign the OER.

6.  On 25 October 2001, NJP was imposed against the applicant by the commanding general (CG) for the wrongful and dishonorable violation of a lawful general regulation by wrongfully engaging in an illegal association with two Soldiers-in-training and for wrongfully stealing U.S. currency, received as government housing allowances during the period 2 March to 4 September 2001.  His punishment consisted of a forfeiture of $1,996.35 per month for 2 months, restriction for 30 days and a written reprimand.  The CG directed that the DA Form 2627 be filed in the performance section of the applicant's OMPF and the applicant elected not to appeal his punishment.  Item 5 of the DA Form 2627 indicates it was to be filed in the performance section of his OMPF.  Accordingly, the DA Form 2627 and the reprimand were filed in the performance section of his OMPF.  There is no evidence in the available records to show that the applicant applied to the Department of the Army Suitability Evaluation Board to have the Record of NJP transferred to the restricted portion of his OMPF while he was on active duty.

7.  On 28 November 2001, the CG notified the applicant in writing that he was required to show cause for retention on active duty under the provisions of Army Regulation 600-8-24, paragraph 4-2, because of misconduct, moral or professional dereliction, and derogatory information (punishment under the UCMJ, Article 15).  The applicant was advised of the allegations against him and his rights in the matter.

8.  On 28 December 2001, after consulting with counsel, the applicant voluntarily tendered his resignation from the Army in lieu of further elimination proceedings.  He also acknowledged he understood that he could receive an honorable, a general, or an under other than honorable conditions discharge if his resignation was accepted.

9.  On 11 February 2002, the Deputy Assistant Secretary (Army Review Boards) accepted the applicant's resignation and directed that he be discharged under other than honorable conditions.

10.  On 12 February 2002, an electronic message was dispatched from the Human Resources Command - Alexandria informing the applicant's CG that the applicant's request for resignation in lieu of elimination proceedings was approved and that orders would be issued at Fort Jackson directing that the applicant be discharged under other than honorable conditions under the provisions of Army Regulation 600-8-24, chapter 4, due to misconduct, moral or professional dereliction.

11.  However, for reasons not explained in the available records, the applicant was honorably discharged, on 27 February 2002, under the provisions of Army Regulation 600-8-24, paragraphs 4-2b and 4-24a(1), due to unacceptable conduct.  His DD Form 214 also indicates he entered active duty on 5 July 1990.

12.  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.  

13.  Army Regulation 27-10 provides, in pertinent part, that NJP is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment.  Included among nonpunitive measures are administrative reprimands and admonitions.  

14.  Army Regulation 27-10 states, in pertinent part, that the decision to file DA Forms 2627 on the performance or restricted fiche of the OMPF would be determined by the imposing commander at the time punishment was imposed.  The filing decision of the imposing commander is final and was to be indicated in item 5, DA Form 2627.   

15.  Army Regulation 135-100 establishes responsibility and provides procedures for appointment of commissioned and warrant officers in the Reserve Components of the Army.  It provides, in pertinent part, that individuals are not eligible for appointment unless a waiver is authorized under paragraph 1-8, if they were discharged under other than honorable conditions, if they were discharged for unsatisfactory service or if they resigned for the good of the service in lieu of court-martial, involuntary separation, or any form of disciplinary or corrective action.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the NJP was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so.  The punishment was not disproportionate to the offenses and there is no evidence of any violations of the applicant’s rights.   

2.  Accordingly, the DA Form 2627 and the reprimand were properly filed in the performance section of his OMPF as directed by the officer imposing the punishment.

3.  Although the applicant still maintains that he was falsely accused of the offenses for which he resigned his commission, he has not provided sufficient evidence to support his position.

4.  The applicant's contention that he was told the record of NJP would be filed in the restricted portion of his OMPF has also been considered and found to lack merit.  As a commander himself, he should have been familiar with the procedures for imposing NJP and the directions/provisions for filing of the DA Form 2627.  In his case, the DA Form 2627 very clearly reflects that the imposing commander directed the DA Form 2627 be filed in the performance section of his OMPF and the applicant did not appeal the punishment.  There is no evidence to show he was led to believe otherwise. 

5.  While the applicant does not address the issue of the character of his discharge, it is noted that when his request for resignation was approved by the Deputy Assistant Secretary (Army Review Boards), it was directed that he be discharged under other than honorable conditions for misconduct, moral or professional dereliction.  However, for reasons not explained in the available records, the applicant's DD Form 214 indicates he  received an honorable discharge for unacceptable conduct.

6.  Although it appears that an administrative error was made in the issuance of his discharge and his DD Form 214, it has long been an unwritten policy of the Board that an applicant will not be made worse off than when they applied to the Board.  For this reason, the Board will not take any action to affect the administrative change to correct the characterization of his discharge.  However, the applicant should be aware that the documents directing the type of discharge he was to receive are properly filed in his OMPF.

7.  Likewise, there also appears to be no basis to transfer the DA Form 2627 to the restricted portion of his OMPF since the Army has an interest in maintaining such documents, and the applicant has not shown sufficient reasons why it should not remain where it is properly filed.

8.  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.

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.

      
      
      
      _______ _  X _______   ___
               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)                                         AR20090004229



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004229



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1