IN THE CASE OF:	  

		BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20100017449 


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 removal of the following documents from his Official Military Personnel File (OMPF):

* a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 24 July 2005, and the punishment overturned
* a Memorandum of Reprimand (MOR), dated 16 June 2005
* a DA Form 67-9 (Officer Evaluation Report (OER)) for the period 15 April 2004 through 14 April 2005 [hereafter referred to as the contested OER]

2.  He states:

   a.  false statements were made against him;

   b.  he had no legal defense and he was not afforded qualified counsel;

   c.  a deliberate crime was committed by Colonel P---r C. B---r, who was tolerated and protected from his crimes of unlawful command influence;

   d.  his Fifth Amendment rights were violated;

   e.  he never violated Combined Joint Task Force (CJTF) 7 General Order (GO) Number (#) 1 or drank alcohol in Iraq; and


   f.  he has evidence of other officers drinking alcohol, but they never received Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation, Article 15, or reprimands.

3.  He provides pictures of non-alcoholic Beck’s malt beverage cans.  

CONSIDERATION OF EVIDENCE:

1.  The applicant completed prior enlisted service in the Regular Army and 
U.S. Army Reserve (USAR).  On 8 September 1984, he was appointed as a second lieutenant (2LT)/O-1 in the Army National Guard and he was granted Federal recognition.  

2.  He was discharged from the Army National Guard on 8 March 1999 and he was transferred to the USAR Control Group (Reinforcement) on the following day.

3.  He was promoted to major (MAJ)/O-4 on 24 April 1999.  

4.  He was discharged from the USAR on 26 October 2000.  On an unknown date, he reentered the USAR.  Orders C-03-108633, published by the U.S. Army Reserve Personnel Command, St. Louis, MO, dated 27 March 2001, shows he was released from the USAR Control Group (Reinforcement) and he was assigned to a Troop Program Unit, effective 22 March 2001.

5.  On 16 June 2005, he received an MOR in which he was reprimanded by Colonel B---r, the commander of the 11th Armored Cavalry Regiment, Camp Courage in Mosul, Iraq for intentionally lying and misleading investigators as to the nature of his relationship with Ms. A---d, a local national interpreter, during the course of two official investigations.  The MOR stated:

	a.  In May 2005, an investigating officer asked him about the nature of his relationship with Ms. A---d.  He stated that his relationship with Ms. A---d was professional and provided sworn statements in support this affirmation.

	b.  During a subsequent Commander’s Inquiry in May 2005, initiated pursuant to his allegation of theft against Ms. A---d, he provided no less than two sworn statements.  When asked about his relationship with Ms. A---d, he stated he was “friends” and “had a close working relationship.”  Outside of the sworn statements, he continued to have multiple conversations with Captain
M--k P-----d, the investigating officer, about his relationship with Ms. A---d.  Prior 


to the conversations, Captain P-----d expressly informed him that nothing was “off the record.”  Despite this warning, he again stated that the relationship was “strictly business” and that he did not have “time for girlfriends.”

	c.  The Commander’s Inquiry produced sufficient documentation to show otherwise.  Beginning as early as November 2004, his relationship with Ms. A---d went beyond the friendship as described in his various statements.  In March 2005, he petitioned the U.S. Embassy to expedite a fiancé visa on behalf of Ms. A---d.  He even hired an attorney on or about April 2005 to assist him in moving Ms. A---d to the U.S.  He lied and misled two separate investigators, gave false testimony in at least three sworn statements, and stuck to the same lies despite multiple opportunities to set the record straight.

6.  The MOR also stated that commissioned officers must set the example for others.  The traditions and customs of service and military necessitate that his conduct always be guided by moral principles that prevent compromise of his standing as a commissioned officer.  He had failed in this responsibility.  

7.  The MOR was imposed as an administrative measure under the provisions of Army Regulation 600-37 (Unfavorable Information) and not as punishment under Article 15 of the UCMJ.  He acknowledged receipt of the MOR and elected not to submit a rebuttal.

8.  The Commanding General of the Civil Affairs and Psychological Operations Command (Airborne), Fort Bragg, NC, Major General H-----t L. A-------r, directed the MOR be permanently filed in the applicant's OMPF.  The MOR and allied documents were filed in the performance section of his OMPF.

9.  On 16 June 2005, he received the contested OER for the period 15 April 2004 through 14 April 2005, which rated his performance as the Public Works Officer of the 426th Civil Affairs Battalion, Liaison Officer to Task Force Freedom.  The report shows he was rated for 9 months with a nonrated code of “Q” [indicating a lack of rater qualification for a period of 3 months].

10.  The rater on the contested OER is listed as Colonel A—n R. K---n, battalion commander and the senior rater is listed as Colonel B---r, Chief of Staff.  The report was signed by the rater and senior rater on 16 June 2005.  This was a referred report.


11.  The rater selected “No” in the following items under Part IV (Performance Evaluation - Professionalism (Rater)) of the contested OER:

* Character (Army Values):  items 1 - Honor; 2 - Integrity; 6 - Selfless-Service; and 7-Duty
* Actions (Leadership):  item 2 - Decision-Making 

12.  In Part V (Performance and Potential Evaluation (Rater)), the rater evaluated him as “Satisfactory Performance, Promote.”  The rater listed negative comments such as “As the second in charge of the CMOC [Civil-Military Operations Center] in Irbil, he performed in an unsatisfactory manner and displayed extremely poor decision-making.  He engaged in conduct that violated GO #1: (1) when he solicited, possessed, and consumed alcohol and (2) possessed privately owned firearms and ammunition.  (Applicant's) actions while the second in charge at the Irbil CMOC were unbecoming of an officer and inappropriate.  He bears responsibility for his own actions and his inaction in attempting to correct or report the violations of which he was aware.”

13.  In Part VII (Senior Rater), the senior rater assessed the applicant as “Below Center of Mass” with “Do Not Promote.”  The senior rater commented, “(Applicant) did not meet the leadership expectations of a senior and experienced commissioned officer during the rating period.  His behavior and professional conduct violated standing orders and Army values, demonstrated a clear lack of integrity and resulted in punishment administered via a General Officer Article 15.  (Applicant) did not display the leadership behavior expected of a field grade officer and as such should not be assigned to any leadership position requiring supervision of Soldiers.  He should not be promoted or retained as a commissioned officer in our Army.”

14.  On 16 June 2005, the contested OER was referred to the applicant for his acknowledgement.  He signed the report verifying he had seen the completed contested OER and the administrative data was correct.  He indicated that he would not submit matters on his behalf.

15.  On 24 July 2005, he accepted nonjudicial punishment (NJP) under Article 15, UCMJ for the offenses:

   a.  With the intent to deceive, made to Lieutenant Colonel K-----h T--------I, an official statement, to wit:  No, to the question, did you drink alcohol during this deployment, which was totally false, and then known by him to be false.

	b.  With intent to deceive, made to Special Agent D----l J. B---k, an official statement, to wit:  No, to the question, while in Irbil did you drink alcohol, which was totally false, and was then known by him to be false.

	c.  Violated a lawful general order, to wit:  paragraph 5, CJTF-7 GO #1, dated 23 July 2003, by wrongfully consuming alcohol between on or about November 2004 and on or about February 2005.

16.  His punishment consisted of a restriction for 60 days or until redeployment, whichever was sooner, and a forfeiture of $2,966.85 pay per month for two months.  He acknowledged that he had been afforded the opportunity to consult with counsel, he did not demand trial by court-martial, he requested a closed hearing in the Article 15 proceedings, and he attached matters in his defense.  

17.  The imposing official, Major General D---d M. R-------z, directed the original DA Form 2627 be filed in the performance section of his OMPF.  He was advised of his right to appeal to the commander of the Multi-National Corps - Iraq within 5 calendar days.  He elected to appeal the punishment.  A judge advocate determined the proceedings were conducted in accordance with law and regulation and that the punishments imposed were not unjust or disproportionate to the offenses committed.

18.  In a 25 July 2005 memorandum to the applicant, the commander of the Multi-National Corps - Iraq stated:

   a.  The Office of the Staff Judge Advocate informed him (the applicant) after the initial reading of the Article 15 that he could correspond via email, telephone, or could fly space-A and meet with his defense counsel in person.

   b.  The applicant was given ample time to seek counsel, which he did not do.

   c.  On 11 June 2005, the applicant elected not to appeal his punishment.

   d.  The applicant’s request for an appeal was over a month old and he was given ample due process in this instance.  His request for a second opportunity for appeal was denied.

19.  Orders 07-144-00017, published by Headquarters, Civil Affairs and Psychological Operations Command, Fort Bragg, dated 24 May 2007, released the applicant from his current assignment and assigned him to the Retired Reserve, effective 8 June 2007.

20.  Army Regulation 27-10 (Military Justice) provides the applicable policies for administration of NJP:

	a.  Paragraph 3-2 states that NJP may be imposed to correct, educate, and reform offenders whom the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier’s record of service from unnecessary stigma by record of court-martial conviction; or to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings, are recorded on a DA Form 2627.  The regulation also states that absent compelling evidence, a properly-completed and valid
DA Form 2627 will not be removed from a Soldier’s record.

	b.  Paragraph 3-18 (Notification and explanation of rights) states, in part, the Soldier will be informed of the right to consult with counsel and the location of counsel.  For the purpose of this chapter, counsel means the following:  A judge advocate, a Department of Army civilian attorney, or an officer who is a member of the bar of a Federal court or of the highest court of a State, provided that counsel within the last two categories are acting under the supervision of either U.S. Army Trial Defense Services or a staff or command judge advocate.

21.  Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system.

	a.  Paragraph 3-24 states that each report will be an independent evaluation of the rated officer for a specific rating period.  It will not refer to prior or subsequent reports.

	b.  Paragraphs 3-57 and 6-6 provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

	c.  Paragraph 6-10 states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.


22.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) states that once placed in the OMPF, documents become a permanent part of that file and will not be removed from the OMPF or moved to another part of the OMPF unless directed by one of several agencies, one of which is this Board.

23.  Army Regulation 600-37 states that unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

24.  CJTF-7, GO #1, paragraph 5, dated 23 July 2003, prohibited the introduction, possession, sale, transfer, manufacture or consumption of any alcoholic beverage for U.S. Department of Defense Personnel present with CJTF-7 in Iraq.

25.  The Fifth Amendment to the U.S. Constitution states, in part, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation…."

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant’s contentions that false statements were made against him.

2.  His service record shows he was afforded the opportunity to consult with legal defense counsel during his Article 15 proceedings.  In the 25 July 2005 memorandum, the commander of the Multi-National Corps – Iraq, stated the applicant was given ample time to seek counsel, but he didn’t.

3.  His contentions in regard to his commander, Colonel B---r, and that his Fifth Amendment rights were violated are acknowledged; however, the evidence of record does not support his claims.  Any 5th Amendment claims he had regarding his numerous statements to investigators were effectively waived when 


he accepted the Article 15 (if he didn’t raise the issue in his presentations or were determined to be without merit if he did raise the issue).

4.  The applicant received NJP imposed under Article 15 on 24 July 2005 for making false official statements on two separate occasions and for violating paragraph 5, CJTF-7 GO #1, dated 23 July 2003, by wrongfully consuming alcohol.  The imposing commander determined that it would be appropriate to place the Article 15 in the performance section of his OMPF.

5.  He provided pictures of Beck’s non-alcoholic malt beverage cans.  However, this evidence alone is insufficient as a basis to support his contention that he never violated CJTF-7 GO #1.  He provides no evidence that these cans are the same ones witnesses saw him consume.  

6.  He has not presented compelling evidence to support removal of his Article 15 proceedings from his OMPF or to overturn his punishment.

7.  The evidence of record shows he received an MOR on 16 June 2005 for intentionally lying and misleading investigators as to the nature of his relationship with a female local national interpreter during the course of two official investigations.  He was afforded the opportunity to review all of the evidence against him and to submit matters on his own behalf prior to a final filing decision.  However, he did not submit any statements.    

8.  The evidence of record shows the MOR was properly administered in accordance with applicable regulations and is properly filed in the performance section of his OMPF.  There is no evidence of an error or injustice.  

9.  He has not provided clear and compelling evidence which shows that the ratings on the contested OER were in error or that they were not considered opinions and objective judgments of the rating officials at the time the report was rendered.

10.  He also has not provided clear and compelling evidence which shows the ratings on the contested OER were in violation of his rights at the time the report was rendered.  

11.  In the absence to evidence to the contrary, it appears the contested OER represents the considered opinions and objective judgment of the rating officials.  As a result, it is concluded that the OER in question was processed and accepted for filing in the OMPF in accordance with applicable regulations, and 


there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove the contested OER at this time.  

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)                                         AR20100017449



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ABCMR Record of Proceedings (cont)                                         AR20100017449



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