IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100009983 


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 the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 24 May 2008, be transferred from his performance file to the restricted file of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he suffered many problems as a Regular Army Soldier assigned to Fort McCoy, Wisconsin to train Reserve Component Soldiers and that those problems led to him being mentally affected to the point that it affected his working performance and led to his mistake. 

3.  The applicant provides:

* A Report of Behavioral Health Evaluation
* A copy of the DA Form 2627 in question
* Copies of email messages

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the Regular Army on 16 July 1976 and served on active duty as a unit supply specialist until he was honorably released from active duty (REFRAD) in the pay grade of E-6 on 4 September 1992 under the provisions of Army Regulation 635-200, paragraph 16-8, Fiscal Year 1992 Enlisted Early Transition Program.  The applicant was paid $50,729.08 in Special Separation Benefits (SSB).  He enlisted in the United States Army Reserve (USAR) Control Group (Reinforcement).
2.  He continued to serve in the USAR through a variety of assignments and he was he promoted to the pay grade of E-8 on 1 November 2003.

3.  On 12 July 2005, he again enlisted in the Regular Army and on 20 May 2008, while serving as a brigade supply noncommissioned officer (NCO) at Fort McCoy, Wisconsin, nonjudicial punishment (NJP) was imposed against the applicant for stealing $914.00, the property of the United States Government.  The specifics of the charges are that the applicant used his Government Purchase Card to pay his apartment rent and was not forthcoming or truthful about the expenditure when questioned by the reviewing authority.  The applicant exercised his rights and a Criminal Investigation Command investigation was initiated to determine what happened in the case.  The imposing commander directed that the DA Form 2627 be filed in the performance section of the applicant’s OMPF.

4.  The applicant was subsequently transferred to Korea and he applied to the Department of the Army Suitability Evaluation Board (DASEB) to have the DA Form 2627 transferred to the restricted section of his OMPF.  On 10 November 2009, the DASEB denied his request.

5.  On 31 March 2010, while still in Korea, the applicant was honorably retired and was transferred to the Retired List effective 1 April 2010.  He had served 25 years, 7 months, and 23 days of total active service.

6.  The Report of Behavioral Health Evaluation provided by the applicant indicates the applicant was deemed to be mentally responsible.

7.  Army Regulation 27-10 prescribes the guidelines for the filing of NJP.  It states, in pertinent part, that the decision to file the original DA Form 2627 on the performance or restricted fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed.  Personnel serving in the pay grade of E-4 or below, with less than 3 years of service will have the Record of NJP (DA Form 2627) filed in the local unit military justice files.  Personnel serving in the pay grade of E-4 or above with 3 or more years of service will have the DA Form 2627 filed in the OMPF.  The filing decision of the imposing commander is final and will be indicated in item 5, DA Form 2627.

8.  This regulation also provides, in pertinent part, that the commander of an alleged offender must ensure that the matter is promptly and adequately investigated.  The investigation should provide the commander with sufficient information to make an appropriate disposition of the incident.  The investigation should cover whether an offense was committed, whether the Soldier was involved and the character and military record of the Soldier.  If after the preliminary inquiry, the commander determines, based on the evidence currently available, that the Soldier has probably committed an offense and that a NJP procedure is appropriate, the commander should take the necessary action.

DISCUSSION AND CONCLUSIONS:

1.  It appears the NJP action 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 being a Regular Army Soldier tasked to train Reserve Component Soldiers caused him undue stress and led to his misconduct has been considered and appears to lack merit.  The applicant served as a Reserve Component Soldier and senior NCO from 1992 to 2005, when he returned to the Regular Army, and he should have been accustomed to a Reserve Component assignment.  However, the issue in this case is one of trust and integrity and the applicant violated the trust placed in him as a senior NCO when he did something he knew was wrong and tried to cover it up.

3.  In any event, the applicant was afforded the opportunity to demand trial by court-martial, where he could have asserted his innocence or offered mitigating circumstances, and he elected not to do so.  

4.  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. 

5.  Accordingly, the commander was within his authority to impose NJP against the applicant once he determined that the applicant had committed offenses that warranted the action and there appears to be no basis to transfer the record of NJP to the restricted section of his OMPF.

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)                                         AR20100009983



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ABCMR Record of Proceedings (cont)                                         AR20100009983



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