IN THE CASE OF:	  

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090020222 


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 a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) imposed on 9 June 1997 and a general officer memorandum of reprimand (GOMOR), dated 9 June 1997, be removed from his official military personnel file (OMPF).

2.  The applicant states:

* he requests this action be taken to correct a gross injustice
* he was detained by military police in early 1997 for allegedly changing price tags on Army and Air Force Exchange Service (AAFES) merchandise
* he acted unknowingly, unintentionally, and unwittingly in accidentally paying the wrong price for the merchandise and would not have jeopardized his career and reputation over trivial merchandise in an AAFES store
* considerable publicity was subsequently given to his actions by the European Stars and Stripes newspaper
* the publicity was biased, inappropriate, unfair, and based on a personal vendetta by newspaper reporters and editors
* although his entire chain of command expressed confidence in his integrity to the adjudicating officer at his Article 15 hearing, this publicity unduly influenced him during the hearing process
* subsequent to the incident he continued to perform superbly as the V Corps Artillery Chief of Staff for approximately 6 months despite very public and vicious attacks directed at him in the Stars and Stripes newspaper
* he continued to train, lead, and mentor a very inexperienced V Corps Artillery staff despite the personal and professional pressures that accompanied the lengthy adjudication process
* he remains innocent of the charge that led to the Article 15
* he had initially planned to wait 10 years and then seek executive clemency in 2007
* on 13 December 2006, he requested information from the Pardon Attorney, U.S. Department of Justice, regarding the executive clemency process
* in December 2006, he was informed an Article 15 is not subject to Presidential pardon authority and it was suggested that he petition the Army Review Boards Agency

3.  The applicant provides:

* four newspaper article from the Stars and Stripes newspaper
* letter, dated 21 December 2006, from the Pardon Attorney, U.S. Department of Justice

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 entered active duty on 29 June 1976.  He was promoted to lieutenant colonel on 1 May 1993.

3.  A DA Form 2627, dated 9 June 1997, shows nonjudicial punishment was imposed against the applicant for stealing a blanket (value of $20.00), the property of AAFES.  His punishment consisted of a forfeiture of pay and a reprimand.  The issuing commander directed that the original DA Form 2627 be filed in the performance section of the applicant's OMPF.  The applicant's appeal was denied on 23 July 1997.

4.  On 9 June 1997, the applicant received a GOMOR for misconduct (while shopping at the AAFES in Germany, store detectives, using a surveillance camera, observed the applicant remove a cardboard insert from a package containing a blanket; the applicant was then observed replacing the cardboard insert from a second, less expensive blanket; he then went to the cashier, presented the first blanket, paid the price established on the cardboard insert for the second, less expensive blanket, then departed the store).

5.  On 31 May 1999, the applicant retired in the rank of lieutenant colonel after completing 22 years, 11 months, and 2 days of creditable active service.

6.  A review of the performance section of the applicant's OMPF on the integrated Personnel Electronic Records Management System revealed a copy of the DA Form 2627 imposed on 9 June 1997 and the GOMOR, dated 9 June 1997.

7.  In support of his claim, the applicant provided four articles from the Stars and Stripes newspaper, dated 14 May 1997, 29 June 1997, 10 December 1997, and 22 December 1997, pertaining to the price switch incident at the AAFES.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), currently in effect, prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Table 2-1 provides that a DA Form 2627 will be filed in the performance or restricted section of the OMPF as directed by the issuing commander (item 5 of the DA Form 2627).  Allied documents accompanying the Article 15 will be filed in the restricted section.  Table 2-1 of the regulation also provides administrative letters of reprimand will be filed in the performance section.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant contends the publicity in the Stars and Stripes newspaper unduly influenced the adjudicating officer at his Article 15 hearing, three of the four newspaper articles provided by the applicant were dated after his Article 15 was imposed on 9 June 1997.

2.  There is no evidence the DA Form 2627 or the GOMOR were improperly imposed.  The DA Form 2627 and the GOMOR were properly filed in the performance section of the applicant's OMPF.  Based on the foregoing, there is no basis for granting the applicant's requests.

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)                                         AR20090020222



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ABCMR Record of Proceedings (cont)                                         AR20090020222



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