IN THE CASE OF:	  

		BOARD DATE:	        28 May 2009

		DOCKET NUMBER:  AR20090004727 


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, in effect, reconsideration of his previous request to have a 2000 Record of Proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ) removed from the restricted portion of his Official Military Personnel File (OMPF).

2.  The applicant states the Board which considered his original request failed to address the Board’s ability to grant relief based solely upon discovery of an injustice and that it is not bound by standards set forth in any Army regulation.  He once again emphasizes that it has been approximately 9 years since imposition of the UCMJ action and that he has more than demonstrated his value to the Army by overcoming the punishment.  He states he has proven himself worthy of the relief he seeks and argues that it would be in the best interest of justice and in the Army’s best interest to remove the UCMJ action from his restricted file and transfer it to the Board for permanent filing, thereby allowing him to reach his full potential as a Soldier.  He states that the UCMJ action in his restricted file is preventing him from appointment as a Command Sergeant Major (CSM).

3.  The applicant provides statements from four CSMs attesting to his professionalism and potential for service as a CSM.  He also submits copies of his two awards of the Bronze Star Medal, one for meritorious service during Operation Iraqi Freedom and the other for meritorious service during Operation Enduring Freedom, and a recent Noncommissioned Officer Evaluation Report.



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070013556, on 11 December 2007.

2.  While the applicant’s request for reconsideration is outside the normal requirements which permit reconsideration, in this case the applicant was informed that the Board would be willing to waive the one-year restriction on reconsiderations if he were to submit strong evidence that the previous Board did not consider.  The statements submitted by the four CSMs constitute such evidence.

3.  The original Board incorrectly noted that the applicant had been punished under Article 15 of the UCMJ in June 2000 for wrongfully soliciting the sale of mutual funds to four Soldiers while on active duty.  In actuality it was only two Soldiers.  However, at the time of the incident, the applicant was serving as the Consumer Affairs Counselor in the rank of Sergeant First Class/E-7 and the two Soldiers were privates.  The record of nonjudicial punishment (NJP) notes the applicant would have received personal compensation as a result of the solicitation which violated both the Joint Ethics Regulation and the Army’s Command policy under Army Regulation 600-20, paragraph 4-14b(1-4).

4.  As noted in the Board’s original deliberation, the record of NJP was filed in the restricted portion of the applicant’s OMPF and he was subsequently promoted to the rank of Master Sergeant/E-8 and Sergeant Major/E-9.

5.  The applicant was awarded a Bronze Star Medal in June 2005 for service as a company first sergeant in support of Operation Iraqi Freedom (Iraq).  In February 2008 he was awarded a Bronze Star Medal for his meritorious service as the logistics Sergeant Major of an engineer brigade in Afghanistan during Operation Enduring Freedom.

6.  The statements submitted by the applicant in support of his request for reconsideration were authored by four different CSMs.  One statement, authored by a Brigade CSM at Fort Hood, Texas, specifically noted the applicant “always maintains his professionalism and is as straight forward as he is himself…no shortcuts, no half ways, no holding back.  This requires courage, confidence, and uncompromising integrity….”  While each of the statements attest to the applicant’s professionalism and potential for contributions to the Army at the highest level of the noncommissioned officer corps, none of them made mention of the applicant’s 2000 UCMJ action or that the letters were intended to support the applicant’s petition to remove the UCMJ action from his restricted file.

7.  Army Regulation 600-20, paragraph 4-14b(1-4) prohibits relationships between Soldiers of different rank if they:

   a.  Compromise, or appear to compromise, the integrity of supervisory authority or the chain of command.
   
   b.  Cause actual or perceived partiality or unfairness.
   
   c.  Involve, or appear to involve, the improper use of rank or position for personal gain.
   
   d.  Are, or are perceived to be, exploitative or coercive in nature.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) states, in pertinent part, that ABCMR members will:

   a.  Review all applications that are properly before them to determine the existence of error or injustice.
      
   b.  Direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.
      
   c.  Recommend a hearing when appropriate in the interest of justice.
      
   d.  Deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper.
      
   e.  Deny applications when the application is not filed within prescribed time limits and when it is not in the interest of justice to excuse the failure to file in a timely manner.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s argument that the Board is not bound by standards set forth in any Army regulation and that it may grant relief based solely upon discovery of an injustice is correct.  However, it should also be noted that when the alleged injustice is not adequately supported by the evidence the Board may deny the application.

2.  In this particular case, the applicant was a senior noncommissioned officer at the time he was punished under Article 15 of the UCMJ for soliciting two privates to purchase mutual funds which would have resulted in his own personal gain.  He did this to not one but two privates, the most junior and generally most vulnerable members of the military.  Clearly such behavior violates the most basic of military customs and calls into question the leadership and integrity of the applicant.  

3.  The imposing authority filed the UCMJ action in this senior noncommissioned officer’s restricted file and not in his performance file, which enabled him to be promoted.  However, one could also argue that the imposing authority filed the UCMJ action in the restricted file knowing full well it could impact appointment to CSM.  It appears that filing in the restricted file was done deliberately and, in any case, retention in that file is appropriate.

4.  While the applicant certainly has continued to Soldier on as evidenced by his subsequent promotions and award of two Bronze Star Medals, the removal of the UCMJ action from his restricted file, which may ultimately enable him to be appointed to the highest noncommissioned officer grade in the Army, may remove a perceived injustice for the applicant but would certainly create an injustice for the Army by placing him on a level playing field with Soldiers whose service was not tainted by such misconduct or lapses in integrity.

5.  In view of the foregoing, the Board concludes there is no error or injustice and as such concludes there is no basis for granting the applicant's request.

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 to amend the decision of the ABCMR set forth in Docket Number AR20070013556, on 11 December 2007.


      _______ _   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)                                         AR20090004727





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ABCMR Record of Proceedings (cont)                                         AR20090004727



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