IN THE CASE OF:	  

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090020227 


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 that an August 2004 Record of Proceedings Under Article 15 of the Uniform Code of Military Justice (UCMJ) and a letter of reprimand be removed from his restricted file.

2.  The applicant states he received the Article 15 in August 2004 for wrongful use of a government issued charge card.  He states he would like the Article 15 and letter of reprimand removed under the provisions of Army Regulation 600-37, paragraph 7-4 which states the “intent of the punishment has been served.”  He also states information regarding extenuating circumstances related to the case was not presented.

3.  He states he used the government credit card between November 2003 and February 2004 after being told he should use the card to track his travel expenses while attending the First Sergeant Course enroute to his new duty station in Belgium.  He states he was not told he had to actually be in a temporary duty (TDY) status to use the card.  He states he used the card again in July 2004 when he was on leave and was turning in his rental car.  He states his personal debit card was not working because his personal account was frozen after the bank attempted to automatically pay his government card.  He states the reason the account was frozen was not known to him at the time.  He did not want to miss his return flight to Belgium; therefore, he used his government card to settle his rental car agreement.  The applicant states he subsequently discovered there was a “glitch” with his personal bank account which resulted in returned payments for the balance on his government charge card and as result his chain of command was led to believe his government charge card was delinquent due to negligence when in actuality he had the funds available to make the payment.

4.  The applicant states he kept his chain of command informed of his decision to use his government credit card to pay for his rental car while on leave.

5.  The applicant states that he takes full responsibility for his action; he never intended to misuse his government card.  He also acknowledges that while he should have made himself more knowledgeable about the rules for use of the government card he was forthcoming from the very beginning once he realized his mistake.

6.  The applicant states since receiving the Article 15 and the letter of reprimand he has continued to strive for excellence, sought out the most challenging and difficult positions, and deployed to Operation Iraqi Freedom (OIF) as a first sergeant.  He states he has 20 years of service, continues to service proudly, sets and reinforce standards, and believes the intent and purpose of the Article 15 and the letter of reprimand have been met and that neither was ever intended to permanently disqualify him from promotion to sergeant major and command sergeant major.

7.  The applicant provides 12 letters of support recommending the Article 15 and letter of reprimand be removed from his Official Military Personnel File (OMPF).  He also submits copies of various performance evaluation reports spanning the years between 1994 and 2009, and a copy of his enlisted record brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in 1985 and in February 2004 was promoted to the rank of master sergeant. 

2.  In October 2003 the applicant requested that his government credit card account, which had been closed, be reopened.  In doing so the applicant acknowledged that he had read, understood, and agreed to abide by the terms and conditions of the government credit card agreement between the Department of Defense Employee and Bank of America.

3.  Volume 9 of the Department of Defense Financial Management Regulation states the card may only be used for necessary and reasonable expenses incurred during official travel.

4.  The applicant attended the First Sergeant Course at Fort Bliss, Texas between 12 and 30 January 2004 while enroute from his tour of duty in Kuwait to his new duty station in Belgium.

5.  Documents in the applicant's OMPF indicate he was attempting to resolve his $3,000 government credit card bill in June 2004.  His credit card transaction statement indicates he accumulated late fees on two separate occasions prior to July 2004.  On 9 July 2004 the battalion commander informed the applicant that his government credit card was 60 days overdue.

6.  In August 2004, the applicant was punished under Article 15 of the UCMJ for misusing a government credit card.  The UCMJ action indicated he used the card for unofficial purposes on:

* 15 and 29 December 2003
* 5, 6, 30 and 31 January 2004
* 6 July 2004

7.  The applicant indicated he intended to present matters in his defense during a closed hearing with the imposing authority.  His punishment included a forfeiture (suspended) and a letter of reprimand.  

8.  The applicant appealed the UCMJ action by noting he:

* used the card for what he believed was its intended purpose
* informed his chain of command of everything going on with his government credit card
* used the card in July 2004 for what he considered an emergency
* had 17 years of excellent service

9.  In his appeal the applicant further explained he used the card because he was told by a budget official in Kuwait to use the card to track all of his travel expenses.  He was never told he could not use the card on leave but only while in a TDY status.  He also explained he used the card in July 2004 while on leave because his personal card was rejected when he attempted to pay for his rental car.  Rather than face being absent without leave (AWOL) he used the government card to settle his rental car agreement so he could make his return flight to Belgium.  

10.  He discovered after returning to Belgium his personal credit card had been rejected because of a “glitch” at his bank.  He noted the bank attempted to process a payment for his government credit card bill but the attempt failed resulting in an unpaid bill and a hold on his personal account.
11.  Documents in his OMPF indicate that on 15 and 24 June 2004 the applicant attempted to pay his government credit card bill via a telephone transaction.

12.  The information contained in his UCMJ appeal is nearly identical to the appeal he submitted to this Board for consideration.

13.  In July 2005 the applicant submitted an appeal to the Department of the Army Suitability Evaluation Board (DASEB) to transfer the Article 15 and letter of reprimand from the performance section of the OMPF to the restricted portion of the OMPF.  His appeal contained the same arguments he made in his appeal of the UCMJ action in August 2004 and the appeal he submitted to this Board.  The DASEB approved the applicant’s request to transfer the documents based upon intent served. 

14.  The applicant’s evaluation reports between 1994 and 2009 all note he is an exceptional Soldier.  Reports rendered since March 2006 rated him “among the best.”  He served two tours of duty in Kuwait and one in Iraq.  His individual decorations include the:

* Bronze Star Medal
* Meritorious Service Medal
* Joint Service Commendation Medal
* three awards of the Army Commendation Medal
* three awards of the Army Achievement Medal
* seven awards of the Army Good Conduct Medal

15.  The 12 statements the applicant submitted in his support of his request all attest to his outstanding performance and his potential to serve as a sergeant major or command sergeant major.  A statement from the officer who imposed the UCMJ action notes he would have changed his mind about administering the Article 15 and letter of reprimand had he known all of the extenuating circumstances surrounding the applicant’s use of the government card.  

16.  In June 2009 the applicant’s restricted file was provided to the Sergeant Major and Command Sergeant Major Training and Selection Board.  The applicant was not selected.






17.  Army Regulation 600-37 (Unfavorable Information) states 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 object 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.  

18.  This regulation also provided that UCMJ action may be transferred upon proof that the intended purpose has been served or the transfer would be in the best interest of the Army.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant argues that extenuating circumstances relating to the misuse of his government credit were not available at the time he received the UCMJ action and reprimand, the evidence available to the Board indicates otherwise.  The applicant outlined the circumstances in his initial appeal of the UCMJ action.  The evidence also shows the applicant intended to present matters in his defense during the closed hearing of his UCMJ action yet offers no explanation why he either did not or chose not to present this same information during that hearing.  

2.  The evidence shows the applicant was a senior noncommissioned officer who had a previous government credit card as indicated by the fact he requested his closed account be reopened in October 2003, prior to his departure from Kuwait.  Clearly he was not new to the government credit card program.  His argument he was unaware he had to be in a TDY status to use the card is not credible and does not serve as a basis to excuse his behavior.

3.  While the applicant’s record indicates he is an outstanding Soldier and has continued to Soldier on, 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 unfavorable information.  

4.  In view of the foregoing, there is no error or injustice and as such 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 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)                                         AR20090020227



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ABCMR Record of Proceedings (cont)                                         AR20090020227



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