IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090012791 


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, that the nonjudicial punishment (NJP) set forth in the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 2 March 2009, be dismissed; the document removed from his official military personnel file (OMPF); his rank be reinstated; and the forfeited pay be remitted.

2.  The applicant states, in effect, the battalion commander imposed NJP; however, he does not believe the evidence supported the findings.

	a.  He states that upon arrival in the Republic of Korea (ROK) in August 2008, he was informed that his assignment was changed from Camp Hovey to Camp Humphreys and, as a result, he was eligible to apply for an accompanied (with dependents) tour.  He states his unit failed to assist him in getting from Camp Hovey to Camp Humphreys and he had to arrange for his own transportation.

	b.  He states he met the requirements for promotion to staff sergeant (SSG) (E-6) on 1 September 2008.  However, since his promotion packet was not on file due to his recent reassignment, he was required to provide documentation validating his promotion and this resulted in a 12-day administrative delay of his promotion.  He adds that his integration into the unit was also hampered because his unit deployed to a field training exercise the following week, he remained in the rear detachment, and he did not have a computer to accomplish his duties as a career counselor.

	c.  He states he met with the battalion commander and command sergeant major (CSM) to discuss the fiscal year 2009 retention mission in October 2008.  He adds he was selected as the 2nd Infantry Division Career Counselor of the Year for 2008, was the runner up for the 8th Army Career Counselor of the Year, and he won a trip to the Retention Training Seminar in Destin, Florida, the following month.

	d.  He states he submitted his command sponsorship packet in October 2008.

	e.  In November 2008 he was authorized 30 days of leave in conjunction with temporary duty (TDY) to attend the Retention Training Seminar.  He adds that he informed two senior noncommissioned officers (NCO's) of his upcoming departure and, based on experience, it was his understanding that one of the NCO's "would cover down in my absence."  He states that 3 days after his departure, his unit contacted him regarding unresolved issues with pending contracts and he provided a point of contact for the contracts.  He also states that after the seminar he proceeded to Fort Leonard Wood, Missouri, on leave.  An inquiry into the status of his command sponsorship revealed that there was no projected date for the completion of the process.  He further states that he and his wife had already out-processed their children from their school.

	f.  In December 2008, the applicant was informed that the Chief of Behavioral Medicine required additional information pertaining to his wife's medical needs in order to determine if her medical needs could be provided for in the overseas command.  He states that his return flight to Korea scheduled for 18 December 2008 was cancelled due to inclement winter weather.  He sent electronic mail (email) messages and also began calling leaders in his unit, but the messages and calls went unanswered.  He adds that his first sergeant contacted him via telephone on 29 December 2008, informed him that he was absent without leave (AWOL), and that he must return to his unit in Korea immediately.

	g.  He states that he arrived in Korea at approximately 2100 hours, 2 January 2009; he was detained at the debarkation gate by Korean Police because his identification card was flagged; he was then interviewed by the Military Police; and released to return to his living quarters.  He reported to accountability formation on 5 January 2009 and following the formation he was instructed to report to the CSM's office later that day.  At the CSM's office, he was counseled for possible UCMJ action for being AWOL and relieved of his duties as career counselor.  He was instructed to report to the U.S. Army Criminal Investigation Command (USACIDC, also known as CID) for processing.  The applicant describes his processing at CID.

	h.  In mid-January he received an emergency Red Cross message that his wife was hospitalized and he was granted 21 days of emergency leave.  He adds that he suffered headaches while on leave and it was discovered that he had a large tumor on his skull.  The applicant's overseas command granted him an extension of his leave; however, the applicant elected to return to his unit in Korea on 13 February 2009 for fear of a repeated AWOL offense.  He was harassed by several senior NCO's and officers in his unit to pay the outstanding charges on his government travel charge card (GTCC) from his TDY.  He adds that he took his paid receipts to the brigade Defense Transportation System (DTS) office in February to file and settle the travel voucher reimbursement.

	i.  He was experiencing financial difficulties because he had not received reimbursement for his TDY travel and as a result of the NJP.  The first sergeant's wife, SSG Chantel E____, was placed in his position as career counselor which confirmed his suspicions that he was the victim of unfair and unjust punishment.  He adds that he did not appeal his punishment because he feared for his safety.

	j.  He traveled to Tripler Army Medical Center in Hawaii for medical treatment in April 2009; however, upon checking into his hotel he learned that his GTCC had been inactivated.  He adds that his wife contacted the 2nd Infantry Division Inspector General's (IG) office and his card was reactivated.

	k.  Upon checkout in May 2009, the balance of his hotel bill exceeded the GTCC limit of $4,000.00, he was required to settle the outstanding balance of the bill from his personal funds, and he obtained a loan from Army Emergency Relief.  He adds he was subsequently assigned to a Warrior Transition Unit (WTU).

	l.  The pay actions resulting from his NJP and termination of his foreign service pay further exacerbated his personal financial situation.  He concludes by stating the treatment his family and he received was far worse than anyone could fathom and his former chain of command should be investigated.

3.  The applicant provides a DA Form 2627 with attached documents and documentation related to his leave, GTCC, financial transactions, promotion, and medical records.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted and entered active duty in the Regular Army on 14 September 2000.  Upon completion of training he was awarded military occupational specialty 74D (Decontamination Specialist).  The applicant progressed normally and was promoted to SSG effective and with a date of rank of 1 September 2008.

2.  A DA Form 2627 shows on 19 February 2009 the Commander, 602nd Aviation Support Battalion, Humphreys Garrison, ROK, notified the applicant of his intent to impose NJP upon him for unauthorized absence from 26 December 2008 to 3 January 2009 and for violating a lawful general regulation by wrongful misuse of a GTCC.

	a.  The applicant did not demand trial by court-martial; requested a closed hearing and a person to speak in his behalf; and indicated matters in defense, mitigation, and/or extenuation would be presented.

	b.  The imposed punishment consisted of reduction to sergeant (E-5), 45 days of extra duty, and an oral reprimand.  The commander directed the DA Form 2627 be filed in the restricted portion of the applicant's OMPF.

	c.  The applicant did not appeal.

	d.  Item 11 (Allied Documents and/or Comments) contains the entry, "see attached documents."

	e.  The DA Form 2627 and attached documents are filed in the restricted section of the applicant's OMPF and, in pertinent part, includes:

		(1)  A DA Form 4856 (Developmental Counseling Form) shows that CSM Kenneth O. M____, Sr., counseled the applicant on his misuse of a GTCC, being AWOL subsequent to the extension of his leave period, and failure to adequately plan for retention coverage during his TDY and leave.  The applicant indicated with his initials that he agreed with the information summarized on the counseling form, he offered no comments or remarks, and both the applicant and CSM signed the form on 6 January 2009.

		(2)  A DA Form 4187 (Personnel Action) shows the applicant's duty status was changed from leave to AWOL effective 0001 hours, 26 December 2008.  The DA Form 4187 was approved and signed for the commander on 31 December 2008.

		(3)  A DA Form 4187 shows the applicant's duty status was changed from AWOL to present for duty (PDY) effective 0127 hours, 3 January 2009.  The DA Form 4187 was approved and signed by the commander on 3 January 2009.

		(4)  A DA Form 31 (Request and Authority for Leave), dated 15 October 2008, shows the applicant was authorized TDY for the World Retention Training Seminar (16-21 November 2008) and ordinary leave from 22 November 2008-17 December 2008.  Item 15 (Extension) shows the applicant was granted an 
8-day extension of his leave under the authority of his battalion commander.  This item was signed for the commander on 17 December 2008.

		(5)  A 2nd Infantry Division GTCC misuse form shows the applicant indicated, "I accept full responsibility for making irresponsible decisions of abuse of my cardholder privileges."  The applicant placed his signature on the form on 6 January 2009.

		(6)  An extract of Army Regulation 600-20 (Army Command Policy), paragraph 4-22 (Misuse of GTCC), states members of the Army are provided GTCC to facilitate official travel and official travel-related expenses away from the Soldier's official duty station.

3.  The applicant provides the following documents in support of his application:

	a.  An extract of Army Regulation 600-20 with attention drawn to paragraph 
4-22e(2) (Expenses Incurred During Leave in Conjunction with TDY), states the travel card also may be used for personal lodging or car rental charges incurred in conjunction with otherwise authorized official travel expenses when such charges are an integral part of the billing for the period spent at the TDY location while on official travel (for example, when a traveler spends a weekend or authorized leave at a TDY location before or after TDY and a room or car rental is continued into TDY, a weekend, or a period of authorized leave).

	b.  An extract of Army Regulation 601-280 (Army Retention Program) with attention drawn to appendix B (Selection and Relief Processing for Active Army and Active Guard/Reserve Career Counselors), paragraph B-4 (Criteria for Immediate Relief and Reclassification of Career Counselors (Active and Reserve)), lists "UCMJ action or conviction by a court-martial" to which the applicant notes, "in the event that UCMJ action is overturned, career counselor status should be reinstated."

	c.  A Bank of America Travel Card Statement with transaction dates ranging from 11 October to [at least] 21 November 2008 shows, in pertinent part, the applicant received ten cash advances (i.e., from 11 October 2008 to 5 November 2008) at Pyeong Taek, ROK, prior to the start of his TDY (i.e., 16 November 2008).

	d.  An email message from the applicant to CSM M____, dated 18 December 2008, shows he requested an 8-day leave extension from his scheduled return date of 17 December 2008 due to inclement weather preventing him from making his connecting flight to return to Korea.  The CSM responded, "continue to try to get a return flight.  We will only approve an extension until the weather breaks.  Do not take 8 more days."

	e.  A DA Form 31 and email messages show the applicant was authorized 29 days of convalescent leave from 7 May 2009 to 4 June 2009, a 15-day extension of leave through 15 June 2009, a 15-day extension of leave through 30 June 2009, and a 28-day extension of leave through 28 July 2009.  The convalescent leave was related to the applicant's medical evaluation board processing and assignment to a WTU at Fort Leonard Wood, Missouri.

	f.  Five pages of email messages, dated 8-9 July 2009, relate to the applicant's duty status and financial matters relating to the period of his convalescent leave.

	g.  Financial documents show the applicant made two payments toward his Bank of America Corporation travel card in the amounts of $1,000.00 and $1,095.05 on 20 January 2009 and 25 February 2009, respectively; payment of GTCC charges in the amount of $804.39 on 20 February 2009; reimbursement of travel expenses for his TDY in the amount of $2,968.91 on 11 March 2009; and that he was issued an AER loan in the amount of $321.00 on 5 May 2009.

	h.  A memorandum, dated 2 October 2008, subject:  New Government Charge Card Contract - What You Need to Know Related to both the Department of Interior Integrated Charge Card and GovTrip, shows the then current contract expired on 29 November 2008, the new government master contract was effective 30 November 2008, and that all cardholders who had accounts in good standing would be automatically issued a new card.

	i.  Promotion orders, email messages, leave and earning statements, Enlisted Record Brief, and Noncommissioned Officer Evaluation Reports document the applicant's duty performance from February 2005 through 31 August 2008 and his promotion to SSG effective 1 September 2008.

	j.  Medical records spanning the period 19 March 2006 to 30 April 2009 document the applicant's symptoms, diagnosis, and treatment pertaining to his medical conditions of a neck sprain injury, chronic headaches, and surgery for removal of left occipital and sub-occipital bone lesion.

4.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.  This document states that only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

5.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

6.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.  Paragraph 7-2 of this regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the findings and sentence set forth in the DA Form 2627, dated 2 March 2009, should be dismissed, the document should be removed from his OMPF, his rank should be reinstated, and the pay he forfeited as a result of the NJP should be remitted because he does not believe the evidence supported the findings.

2.  The evidence of record shows the applicant was initially authorized leave through 17 December 2008 and on 18 December 2008 he requested an 8-day leave extension due to inclement weather.  The evidence of record also shows that the applicant's battalion CSM informed him to continue to try to get a return flight, that an extension was approved only until the weather breaks, and the applicant was instructed "do not take 8 more days."

	a.  Records show the applicant's duty status was changed from leave to AWOL effective 0001 hours, 26 December 2008, and that the DA Form 4187 was approved and signed for the commander on 31 December 2008.  In effect, this administrative determination gave the applicant the benefit of the doubt by actually granting him the 8-day leave extension he requested despite the instructions given him by the CSM to return to his unit as soon as possible.  In addition, the applicant provides insufficient evidence that the individual who signed the document for the commander was not authorized to do so.
	b.  The evidence of record shows the applicant arrived in the ROK on or about 2100 hours, 2 January 2009; he was detained by the Korean Police; he was released to the Military Police on 3 January 2009; and he reported to accountability formation on 5 January 2009.

	c.  Records show the applicant's duty status was changed from AWOL to PDY effective 0127 hours, 3 January 2009, and that the DA Form 4187 was approved and signed by the commander on 3 January 2009.

	d.  The applicant provides insufficient evidence to support his claim that the evidence does not support the charge of AWOL under the provisions of Article 86, UCMJ, from 26 December 2008 to 3 January 2009.  Therefore, the applicant is not entitled to correction of his records in this instance.

3.  The evidence of record shows that members of the Army are provided GTCC to facilitate official travel and official travel-related expenses away from the Soldier's official duty station.

	a.  Records show the applicant was AWOL from 26 December 2008 to 3 January 2009.  Records also show the applicant violated a lawful general regulation by wrongful misuse of his GTCC during the period he was in an AWOL status.

	b.  Records show the applicant acknowledged with his signature that he accepted full responsibility for making irresponsible decisions of abuse of his cardholder privileges.

	c.  The applicant provides insufficient evidence to support his claim that the evidence does not support the charge of violation of a lawful general regulation under the provisions of Article 92, UCMJ, by wrongful misuse of a GTCC. Therefore, the applicant is not entitled to correction of his records in this instance.

4.  The evidence of record shows the applicant elected not to appeal the NJP imposed by the battalion commander on 2 March 2009 and that the DA Form 2627 is filed in the restricted section of his OMPF.

5.  After a careful review of the evidence of record, it is concluded that the applicant has not submitted compelling evidence to disprove the facially valid DA Form 2627.  Therefore, in view of all of the foregoing, it is concluded that the DA Form 2627 in the applicant's OMPF is administratively correct, the findings and sentence were appropriate for the circumstances, and the document is properly filed.

6.  By regulation, in order to remove a DA Form 2627 from the OMPF, there must be compelling evidence to support its removal.  The applicant failed to submit evidence of a compelling nature to show that the DA Form 2627 filed in the restricted section of his OMPF is in error.  Therefore, the DA Form 2627, dated 2 March 2009, is deemed to be properly filed and should not be removed from the applicant's OMPF.

7.  As a result of the aforementioned conclusions, there is no basis to reinstate his rank and/or remit any portion of the pay he forfeited as a result of the NJP.

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)                                         AR20090012791



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ABCMR Record of Proceedings (cont)                                         AR20090012791



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