BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090015015 


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 reconsideration of his earlier request to expunge his nonjudicial punishment (NJP), including a general officer memorandum of reprimand (GOMOR).  He further requests reconsideration for promotion to lieutenant colonel/pay grade O-5.

2.  The applicant states the following:

	a.  He was required to show cause for retention on active duty because of misconduct, moral, or professional dereliction.

	b.  The subsequent Board of Inquiry (BOI) found that a preponderance of the evidence presented did not show that he had an inappropriate relationship with a female enlisted Soldier, that he had violated the Army command policy against fraternization, or that he had made a false statement to the investigating officer in regard to a relationship with a female Soldier.

	c.  The BOI recommended his retention on active duty based on the available evidence and numerous character references.

	d.  The applicant contends the NJP was invalid due to substantial errors that resulted in material prejudice.

	e.  The applicant is confident that he has strong potential for further useful military service based on his extensive education and knowledge in the U.S. Army and Civil Affairs community.
3.  The applicant provides copies of a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 9 January 2008; a BOI Findings and Recommendations Worksheet; a Report of BOI Proceedings, dated 28 January 2009; a DA Form 4037 (Officer Record Brief), dated 4 May 2007; three memoranda recommending the applicant's retention on active duty; an NJP packet; and the GOMOR, dated 8 February 2003.

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 AR20060010721 on 22 March 2007.

2.  Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth procedures for processing requests for correction of military records.  Paragraph 2-15b governs requests for reconsideration.  This provision of the regulation allows an applicant to request reconsideration of an earlier ABCMR decision if the request is received within 1 year of the ABCMR's original decision and has not previously been reconsidered.

3.  The DA Form 1574, BOI, and letters of recommendation are new evidence that merit consideration by the Board as an exception to policy.

4.  The original Board proceedings show the applicant contended the allegations against him which led to his NJP and subsequent GOMOR were proven to be false.  He did not receive a copy of the completed DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice).  The DA Form 2627 was incomplete.  His counsel never had the opportunity to cross-examine the witnesses.

5.  The original Board carefully considered the applicant's contentions concerning the processing of his NJP.  The Board found that the NJP had been imposed in compliance with applicable laws, regulations, and policies.  The subsequent reprimand was not unjust or disproportionate.

6.  On 21 April 2008, the Assistant Chief of Staff, G-9 (Civil Affairs), V Corps, wrote a memorandum for the applicant's BOI.  The memorandum stated that the applicant had always displayed exemplary professional conduct, commendable officer bearing, and a positive, motivated attitude towards the duties of his section.  The applicant had a wealth of civil-military operations experience, served actively on the Victory Corps Battle Staff team, and set an excellent example for the enlisted Soldiers.  He was strongly recommended for continued service for an indefinite period.

7.  On 28 April 2008, the Deputy Commanding General, V Corps, wrote a memorandum for the applicant's BOI.  The memorandum stated that based on the applicant's evaluation reports since the alleged misconduct and the author's interaction with him, he had demonstrated to be a first-class Soldier with the highest standard of personal and professional conduct, leadership, and dedication to the organization and the mission.  He was strongly recommended for retention for an indefinite period.

8.  On 4 September 2008, the Acting Commander, V Corps, wrote a memorandum for the applicant's BOI.  The acting commander recommended that the case against the applicant be closed and that he be allowed to continue his service on active duty.  The misconduct that formed the basis for the elimination action occurred in 2003.  Since then, as evidenced by numerous positive evaluation reports and by letters of recommendation from senior leaders, the applicant had displayed professional conduct and maintained a positive and motivated attitude toward the performance of his duties.

9.  On 9 January 2008, the BOI found the evidence insufficient to prove the applicant had committed any acts of personal misconduct or conduct unbecoming of an officer.  Accordingly, the BOI recommended retention of the applicant on active duty.  The convening authority notified the U.S. Army Human Resources Command and the applicant that he had been retained on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his NJP and GOMOR should be removed from his military records because the BOI determined the evidence was insufficient to prove he committed the underlying misconduct.  Furthermore, he contends that he should be considered for promotion to lieutenant colonel/pay grade O-5.

2.  The BOI findings and recommendation are insufficient to overcome the commander's imposition of NJP on the applicant some 5 years earlier.  The BOI was tasked with determining the applicant's value for retention on active duty.  It was not tasked with validating the findings of the applicant's misconduct and resultant punishment.

3.  The three recommendations sent to the BOI on behalf of the applicant do not suggest that his NJP was in error, unjust, or should be expunged from his military records.  They simply recommend retention on active duty.

4.  Based on the above, there is an insufficient basis on which to grant promotion consideration.

5.  In view of the above, the applicant's request should be denied.

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 AR20060010721 on 22 March 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)                                         AR20090015015



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ABCMR Record of Proceedings (cont)                                         AR20090015015



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