IN THE CASE OF:	  

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090012333 


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 removal of the DA Form 2627 (Record of Nonjudicial Punishment (NJP)), removal of the facts and circumstances surrounding the 
DA Form 2627, and removal of the General Officer Memorandum of Reprimand (GOMOR) from his Official Military Personnel File (OMPF).  He also requests a transfer from the Retired Reserve back into the Ready Reserve, reinstatement of his security clearance, and reinstatement on active duty for participation in the Global War on Terrorism.

2.  The applicant states:

* He was not given adequate preparation time for the Article 15 hearing
* He had no legal representation at the time of his Article 15 hearing
* He was not properly advised during or after the hearing
* The allegations were false or inaccurate and he could not get Army legal defense upon discharge from active duty
* The officer elimination board could have been subject to undue command influence by the fact that the Director of Military Personnel Management, Office of the Deputy Chief of Staff G-1 (a major general) recommended that a show cause board be convened and the Commander, Human Resources Command – St. Louis (HRC-STL) (a colonel) appointed the board 

3.  The applicant provides a six-page request for redress and a list of attachments tabbed A through N with his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant was a United States Army Reserve (USAR) military intelligence commissioned officer.  He was promoted to the rank of major on 7 January 2000.  He was ordered to active duty on 21 January 2003 and he was serving in Iraq as the linguist pool management team leader on 11 November 2003 when an officer (lieutenant colonel) was appointed under the provisions of Army Regulation 
15-6 to conduct an investigation into the facts and circumstances surrounding alleged misconduct by the applicant.  The applicant was placed under a suspension of favorable personnel actions (FLAG) on 17 November 2003 and his access to sensitive compartmented information (SCI) was suspended with a recommendation to suspend his security clearance pending the investigation.

2.  The investigation was completed on 7 December 2003 and the investigating officer (IO) found that the allegations of dangerous discharge of a weapon and misappropriation of government property were founded.  The IO recommended that disciplinary action under the Uniform Code of Military Justice (UCMJ) be taken against the applicant. 

3.  On 11 March 2004, the commanding general of the Coalition Forces Land Component Command (a lieutenant general) notified the applicant that he was considering whether the applicant should be punished under Article 15, UCMJ for willfully discharging a firearm by shooting at least six rounds at a stray dog under circumstances to endanger human life and for the wrongful appropriation of government property (providing fuel to Iraqi Nationals).  The applicant was advised of his rights and he was further advised to consult with legal counsel at the Trial Defense Service, Building 28, Camp Doha, Kuwait. 

4.  On 13 March 2004, the applicant indicated that he had been afforded the opportunity to consult with counsel and elected not to demand trial by court-martial.  He requested a closed hearing and indicated he would submit matters in defense, mitigation, and or extenuation in person.  He did not request a person to speak in his behalf.

5.  On 19 March 2004, after considering all matters presented in a closed hearing, the imposing officer imposed the punishment of a letter of reprimand (LOR) and a forfeiture of $500.00 pay for 2 months.  The applicant did not appeal the punishment and the imposing officer directed that the Article 15 be filed in the performance section of his OMPF.  

6.  Additionally, on 19 March 2004 the applicant’s commander completed a final DA Form 5248-R (Report of Unfavorable Information for Security Determination) in which the applicant’s access to SCI was suspended and it was recommended that the applicant’s clearance be revoked at the U.S. Army Central Clearance Facility (CCF) level and that all Department of Defense offices be notified that he was a potential security risk to National Defense.

7.  On 23 March 2004, the imposing officer authenticated the LOR and reprimanded the applicant for the reckless discharge of his weapon and wrongful appropriation of fuel to an Iraqi civilian.

8.  On 26 March 2004, the applicant was honorably released from active duty due to completion of required service and returned to his USAR unit.

9.  In October 2004, the CCF issued the applicant a letter of intent (LOI) to revoke his security clearance.  The applicant responded to the LOI on 11 March 2005, and on 31 May 2005 the CCF issued a letter of determination of SCI access and security clearance ineligibility.  The applicant filed an appeal on 
15 July 2005 and requested a personal appearance before the Defense Office of Hearings and Appeals (DOHA). 

10.  The applicant was granted a personal appearance before the DOHA, Washington D.C. Hearing Office and after reviewing all of the available evidence and testimony, on 16 December 2005, DOHA recommended that the U.S. Army Personnel Security Appeals Board denial of SCI access and security clearance previously issued be overturned.  In other words, it was recommended that his security access be restored.

11.  On 25 January 2006, the Director of Military Personnel Management, Office of the Deputy Chief of Staff G-1 (a major general) dispatched a memorandum to the Commander, HRC-STL indicating that the Calendar Year 2005 Reserve Component Lieutenant Colonel (LTC) Promotion Selection Board had identified eight officers who should be required to show cause for retention in an active status.  The applicant was one of the individuals identified.

12.  On 27 February 2006, a memorandum was dispatched to the applicant from the Office of the Deputy Chief of Staff G-2 regarding his appeal of his security clearance denial.  It advised the applicant that the Army Personnel Security Appeals Board (PSAB) convened to consider his appeal and after considering the information in his case and the decision of the DOHA administrative judge, the board decided to deny his appeal.  It further informed the applicant that the decision of the PSAB was based on his failure to mitigate his personal conduct to the CCF and the board found that his behavior was inconsistent with the adjudicative guidelines as outlined in Appendix 8, DoD 5200.2R, DoD Personnel Security Program, used to determine eligibility for a security clearance or access to classified information.  
13.  On 25 November 2006, the Commander, HRC-STL appointed officers to serve on the show cause board.  On 6 November 2008, the applicant was notified that an administrative separation board was scheduled to convene at HRC-STL on 5 December 2008 to consider him for involuntary separation under the provisions of Army Regulation 135-175 for acts of personal misconduct and conduct unbecoming an officer.  On 5 January 2009, a memorandum was dispatched to the applicant informing him his hearing had been changed to 
6 February 2009.

14.  On 1 May 2007, the applicant was removed from his position as a GG-14 intelligence analyst at the Defense Intelligence Agency (DIA) due to the loss of his access to SCI and his security clearance.

15.  On 6 February 2009, the applicant completed an election form in which he elected to tender his resignation in lieu of elimination.  However, on 6 March 2009, he contacted officials at HRC-STL and informed them that he had submitted his request for resignation in lieu of elimination in error and that he wanted to be transferred to the Retired Reserve instead.  He submitted the necessary paperwork for transfer to the Retired Reserve and was transferred to the Retired Reserve effective 6 March 2009.

16.  A review of his OMPF failed to reveal that he ever appealed the transfer or removal of the NJP or the GOMOR to the Department of the Army Suitability Evaluation Board (DASEB).

17.  A review of his official records also shows that the applicant successfully served as a company commander of a military intelligence company in the rank of major for at least 18 months.

18.  Army Regulation 27-10 (Military Justice) dated 20 August 1999, provides, in pertinent part, that the decision whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.  The imposing commander is not bound by the formal rules of evidence used before a court-martial and may consider any matter, including unsworn statements, the commander reasonably believes to be relevant to the offense.  If after evaluating all pertinent matters, the imposing commander determines that nonjudicial punishment is not warranted, the Soldier will be notified that the proceedings have been terminated and all copies of the proceedings (DA Form 2627) will be destroyed.  Nonjudicial punishment 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


19.  Army Regulation 27-10 states, in pertinent part, that the decision to file 
DA Forms 2627 on the performance or restricted section 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.   

20.  Army Regulation 27-10 also provides, in pertinent part, that in regards to NJP, the Soldiers will be advised of their right to consult with counsel and the location of counsel.  For the purpose of NJP, counsel means a judge advocate, a Department of the Army civilian attorney, or an officer who is a member of the bar of a Federal court or of the highest court of a State.  In regards to civilian counsel related to trial by courts-martial, it provides that the accused has the right to be represented in his or her defense before a general or special court-martial or at an investigation under Article 32, UCMJ, by civilian counsel, if provided by the accused at no expense to the government.

21.  Army Regulation 135-175 (Separation of Officers) provides policy, criteria and procedures for the separation of officers of the Army National Guard and USAR.  It provides, in pertinent part, that recommendations for involuntary separation made be originated by a proper Headquarters, Department of the Army (HQDA) agency regardless of the officer’s assignment, a commander with respect to a member of that command, and a duly constituted selection board operating under official letters of instruction, in which the board may recommend individuals who should be involuntarily separated.  Existence of acts or behavior not clearly consistent with the interests of National security requires the involuntary separation of an officer.  On securing the acknowledgment of receipt from the officer who is properly notified, the area commander will, if the officer elects transfer to the Retired Reserve and is otherwise eligible, process the officer’s request.

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 offense and there is no evidence of any violations of the applicant’s rights.   

2.  The applicant’s contention that he was not given adequate preparation time for the Article 15 hearing, that he had no legal representation, and that he was not properly advised during or after the hearing have been noted and appears to be without merit.  The applicant was advised during the initial NJP proceedings of his right to consult with counsel and the exact location and phone number of the Trial Defense Service in the command.  The applicant has provided insufficient evidence to show that he was not afforded proper access to counsel or that he requested an extension of his initial 48 hours in order to consult with counsel.

3.  In regard to the applicant’s contention that the allegations were false or inaccurate and he could not get Army legal defense after being discharged from active duty, it is noted that the imposing commander was not bound by the formal rules of evidence applied to trial by court-martial and thus was allowed to consider far more evidence during the proceedings.  Additionally, when the applicant decided not to demand a trial by court-martial, he essentially decided to allow the commander to be the judge in his case, rather than to demand a trial by jury or a judge.  Inasmuch as he elected not to appeal his punishment, he had no right to legal defense counsel after he had made such an election.

4.  Furthermore, having served for approximately 19 years at the time the NJP was imposed and having served as a commander in the rank of major, it is a reasonable presumption that the applicant would have a reasonable understanding of the military justice system and the protection of an individual’s rights to due process.  The applicant has failed to provide sufficient evidence to show that he was denied due process in his case.

5.  The applicant’s contention that the GOMOR should be removed also appears to be without merit.  The GOMOR was administered as part of the punishment imposed under NJP and was specified in the NJP.  Inasmuch as he elected not to appeal the punishment he received, there appears to be no violations of any of the applicant’s rights or any doubt that he knew what the GOMOR was being imposed for.

6.  While he asserts that the allegations against him were false or inaccurate, it is noted that he chose at the time not to demand trial by court-martial, whereby he could face his accusers and assert his innocence before a jury of his peers.  He instead chose to accept NJP proceedings where the commander was not bound by the rules of evidence before courts-martial.

7.  The available evidence also suggests that the imposing commander took the necessary steps to investigate the matter to the point where he was convinced that there was sufficient evidence to establish that the applicant had committed the offense that required punishment of some sort.  Accordingly, the commander was within his authority to impose NJP against the applicant once he had determined that the applicant had committed offenses that so warranted and there appears to be no basis to remove the record of NJP from his records.

8.  The applicant’s contention that the officer elimination board could have been unduly influenced merely by the officers who recommended and appointed a show cause board has been noted and found to lack merit.  The two officers in question (a major general and a colonel) were simply complying with the governing regulations requiring notification and appointment of such a board and the applicant has provided no evidence to suggest that any undue influence would have placed or made to the appointed board members.  The process is a standard process that is routinely made and there is no evidence to show that undue influence has ever been a part of the process.

9.  The applicant's contention that his security clearance and access to classified information should be restored by the Board because DOHA made such a recommendation has been noted.  However, the recommendation by DOHA was just a recommendation and that agency did not have the authority to actually restore the clearance.  Accordingly, the appropriate authority after considering DOHA’s recommendation elected to reject DOHA’s recommendation and to revoke his access and security clearance.  Given the unknown in this case, it would be inappropriate for this Board to attempt to second guess the CCF officials, especially during a time of war. 

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.  

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)                                         AR20090012333





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ABCMR Record of Proceedings (cont)                                         AR20090012333



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