IN THE CASE OF:	  

		BOARD DATE:	  3 May 2011

		DOCKET NUMBER:  AR20100023923


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 a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 12 April 2010, from his official military personnel file (OMPF)
* removal of a general officer memorandum of reprimand (GOMOR) from his OMPF

2.  The applicant states:

* he received an Article 15 with a GOMOR as his punishment for wearing unauthorized awards and badges and conduct unbecoming an officer
* he had a good-faith agreement with the trial counsel that if he pled guilty and did not challenge the Article 15, he would not be held on active duty and would not face a show-cause elimination board
* he is currently facing a show-cause elimination board in the U.S. Army Reserve (USAR) because the Article 15 was filed in his OMPF
* he has had a non-traditional military career and, as such, his lack of training and knowledge of the Army has brought him to where he is today
* he unwittingly followed the guidance of those around him
* he believes he was injured in Iraq and he's still being treated for those injuries today
* he was told he would be put in for the Purple Heart for his injuries in Iraq and the Bronze Star Medal for his actions in Iraq
* he was told his records were lost, but the awards and decorations listed on his DD Form 214 (Certificate of Release or Discharge from Active Duty) were authorized for wear
* he accepted nonjudicial punishment (NJP) believing it was the quickest way to continue his military career
* he believed if he accepted the Article 15 he would not be discharged from the Army or USAR
* he would not have accepted the Article 15 had he had a full understanding that it would be filed in his OMPF and what would happen after he was returned to Reserve status
* he has been negatively affected by this incident, as he cannot return to his civilian employment with the Department of Homeland Security

3.  The applicant provides Exhibits A-K, as follows:

* Exhibit A – Colonel (COL) Gxxxx's recommendation memorandum
* Exhibit B – DD Form 214 for the period ending 4 September 2007
* Exhibit C – email documenting the agreement between trial counsel and defense counsel (2 pages)
* Exhibit D – Lieutenant Colonel (LTC) Rxxxx's character reference and recommendation memorandum (2 pages)
* Exhibit E – Major (MAJ) Axxxx's recommendation memorandum (5 pages)
* Exhibit F – MAJ Axxxx's second recommendation memorandum
* Exhibit G – MAJ Sxxxx's recommendation memorandum (2 pages)
* Exhibit H – Master Sergeant (MSG) Axxxx's recommendation memorandum (2 pages)
* Exhibit I – National Personnel Records Center (NPRC) letter to the applicant, detailing his authorized awards (5 pages)
* Exhibit J – DA Form 67-8 (Officer Evaluation Report) for the period 20071115 [15 November 2007] through 20081114 [14 November 2008] (2 pages)
* Exhibit K – Article 15 appeal memorandum (25 pages)

CONSIDERATION OF EVIDENCE:

1.  The applicant requests removal of a GOMOR from his OMPF.  A review of his OMPF failed to reveal the document in question; it appears that this document has not been filed on his OMPF.  Therefore, this portion of the applicant's request will not be discussed further in this Record of Proceedings.

2.  After prior service in the U.S. Naval Reserve, the applicant enlisted in the USAR on or about 13 November 1994.  He served in an enlisted status until he was appointed as a Reserve commissioned officer of the Army in the rank/pay grade of second lieutenant (2LT)/O-1 on 9 June 2004.

3.  On 26 October 2009, court-martial charges were preferred against him for one charge of larceny and wrongful appropriation; one charge of conduct unbecoming an officer and a gentleman; and one charge of wearing an unauthorized insignia, decoration, badge, ribbon, device, or lapel button.  These charges were eventually dropped or withdrawn after the trial and defense counsels agreed on nonjudicial punishment under Article 15, UCMJ.

4.  On 9 February 2010, an Article 32 hearing was held at Lackland Air Force Base, TX.

5.  On 28 February 2010, an Article 32 investigating officer issued his report and recommended that the applicant be tried by a general court-martial.

6.  On 15 April 2010, while serving with the U.S. Army Command Element Joint Information Operations Warfare Command (JIOWC), U.S. Strategic Command, Lackland Air Force Base, TX, he accepted NJP under the provisions of Article 15 of the UCMJ before a closed hearing for the following offenses:

	a.  conduct unbecoming an officer on or about 4 October 2007.  Specifically, he wrongfully and dishonorably submitted, with intent to deceive, a military biography to the JIOWC Army Reserve Chief, which falsely stated he was a graduate of the Military Intelligence Officer Basic Course, the Aviation Officer Basic Course, the Immigration and Naturalization Federal Law Enforcement Academy, and that he earned a master's degree in public administration from Troy State University; and

	b.  wearing an unauthorized insignia, decoration, badge, ribbon, device, or lapel button on or about 21 October 2008.  Specifically, he wrongfully and without authority, wore upon his uniform, the Army Air Assault Badge, the Army Aviator Badge, the Bronze Star Medal, the Joint Service Achievement Medal, and the Purple Heart.

7.  On 15 April 2010 before a closed hearing, his commander directed that he be punished by written reprimand and that the original copy of his DA Form 2627 be permanently filed in the performance section of his OMPF.

8.  On 15 April 2010, he elected to appeal his NJP.  On 12 May 2010, his appeal was denied after the proceedings were found to have been properly conducted under law and regulation and the punishment appropriate.  On 26 May 2010, he acknowledged the action taken.  On 6 January 2011, the DA Form 2627 was filed in the performance section of his OMPF.

9.  He provides:

* several memoranda of record from co-workers and associates testifying to his professionalism and value to the USAR and recommending his retention in the USAR
* his DD Form 214 for the period ending 4 September 2007
* a copy of email traffic between the between trial counsel and defense counsel
* an NPRC letter which details his authorized awards
* his DA Form 67-8 covering the period 20071115 through 20081114
* his Article 15 appeal memorandum with allied documents

10.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.

	a.  Chapter 3 provides that NJP is imposed to correct misconduct as a result of intentional disregard of or failure to comply with prescribed standards of military conduct in violation of the UCMJ.  It further states that NJP is appropriate in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate.  It is a tool available to commanders to correct, educate, and reform offenders whom the commander determines cannot benefit from less stringent measures; to preserve a member's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring fewer resources than trial by court-martial.

	b.  Paragraph 3-37(1)(a) provides that the decision to file the report of NJP (DA Form 2627) in the performance or restricted portions in the OMPF will be made by the imposing commander at the time punishment is imposed.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP (DA Form 2627) from the OMPF.  It states application for removal of a DA Form 2627 from a Soldier's OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR).  It further states there must be compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) establishes the responsibilities, policies, and procedures for maintaining and controlling the OMPF.  It states that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  It further states that the restricted portion of the OMPF is for historical data that may normally be improper for viewing by selection boards or career managers.  The restricted file ensures that an unbroken, historical record of a member's service, conduct, duty performance, evaluation periods, and corrections to other parts of the OMPF is maintained.  It is intended to protect the interests of the member and the Army.

12.  Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a, provides that 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 objective 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.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant received NJP under Article 15 for conduct unbecoming an officer and for wearing an unauthorized insignia, decoration, badge, ribbon, device, or lapel button on his uniform.  The Article 15 was directed to be filed in the performance section of his OMPF.

2.  He was afforded the right to consult with counsel, and he elected not to have his case considered by a trial by court-martial.  He elected to appeal the NJP, his appeal was denied, the proceedings were found to have been properly conducted under law and regulation, and his NJP was found to be appropriate.

3.  He has not provided convincing evidence that his 2010 Article 15 was unjust, in whole or in part, to support its removal from his OMPF.  He also submitted no evidence of any injustice which led to the Article 15 or to warrant relief as a matter of equity.  By regulation, there must be compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record.  Absent evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support removal of the DA Form 2627 from his OMPF.

4.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20100015589



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ABCMR Record of Proceedings (cont)                                         AR20100023923



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