BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20100027478 


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.  two DA Forms 4187 (Personnel Action), dated 28 June and 13 July 2004;

    b.  a DA Form 2627 (Record of Proceedings under Article 15 Uniform Code of Military Justice (UCMJ)), dated 1 September 2004; and 

    c.  a Noncommissioned Officer Evaluation Report (NCOER) ending 31 May 2007 [hereafter referred to as the contested report].

2.  The applicant states the nonjudicial punishment (NJP) proceedings, NCOER, and the DA Forms 4187, which show he went absent without leave (AWOL) and returned were untrue and unjust.  He was cleared of all charges by an Administrative Separation Board on 15 December 2004; therefore, all documents associated with those charges should be removed from his records.  He also states that he does not know, nor did he ever work for the rating officials listed on the contested report, and he was never presented the contested report. 

3.  He also states the separation board found that his command climate was negative and displayed racial prejudice towards him and other minorities as well.   




4.  He provides: 

* Two DA Forms 4187 
* A DA Form 2627
* Several NCOERs
* Various board documents
* Letters of support
* Copies of email
* Congressional inquiry letters
* A statement of service
* A letter from a medical provider
* Two Leave and Earnings Statements (LES)
* His Personnel Qualification Record 

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows that on the date of his application to this Board, he was serving on active duty, in the rank of sergeant first class, in Lexington, KY.

2.  He provided two personnel actions which show he was placed in an AWOL status from 24 June to 11 July 2004.

3.  On 1 September 2004, he received NJP for the following alleged offenses which occurred between 1 April and 6 July 2004:

* willfully disobeying a lawful command from his superior commissioned officer
* falsifying documents with the intent to deceive
* going AWOL
* failing to go to his prescribed place of duty at the prescribed time  

4.  The punishment imposed on the applicant for these violations was a forfeiture of $1,000 pay for 2 months.  The commander who imposed the punishment directed that the original DA Form 2627 be filed in the applicant's restricted file.  The applicant did not appeal the punishment.

5.  His LES for the period of 1 to 31 October 2004 shows $2,000 was collected due to a UCMJ action.  Page two of this document also shows the fine was executed and he was charged with being AWOL for the period 24 June to 11 July 2004.

6.  An email from a Staff Judge Advocate (JAG) attorney to the applicant's chain of command shows it was recommended that the applicant's separation packet be processed as quickly as possible due to his expiration term of service date of 
16 December 2004.  It was also recommended that he not be allowed to play anymore games and that he should be sent to trial defense services immediately.  The command was also advised to give the names of potential board members. 

7.  His Administrative Separation Board proceedings for 2004 are not in the available record; however, he provided a signed page from this document, which contains a handwritten date of 15 December 2004.  This document shows the allegations in the notice of administrative separation in accordance with chapter 14, paragraph 14-12b, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) due to patterns of misconduct were not supported by a preponderance of the evidence, and did not warrant separation.  It also shows the applicant was desirable for further retention in the service of the U.S. Army.  

8.  The board was comprised of one lieutenant colonel and three majors of which one was the recorder.  The members unanimously voted to retain the applicant in the service.  

9.  An email written by one of the separation board members on the same date states, she was a member of the applicant's separation board and during a 2-day period she witnessed all the testimonies on both sides.  She and the other three members found a very hostile environment of racial climate problems and a lot of unjust action towards the applicant.  The evidence presented did not show the applicant was guilty of forgery or wrong doing enough to be separated from the Army.  The available evidence also did not show he was worthy of an NJP.  What it did show was that he was being railroaded through a series of mistakes by others and racial prejudice.  She further stated, that after listening to the testimony presented to the board, she would not recommend that he go back to that unit.  

10.  This board member further provided that the applicant's company commander was practicing racial prejudice and was on a mission to hurt the Army greatly through unsound judgment and unjust practices.  The commander was on a power high that was completely self centered and destructive to the Army Equal Opportunity policy.  The applicant did not deserve to be railroaded and abused any longer and he should be allowed to deploy with another unit. 

11.  On 16 December 2004, the applicant's military trial defense counsel requested that the NJP be wholly set aside.  He noted the applicant's NJP that resulted in a forfeiture of $2,000 was a clear injustice because he was found guilty of allegations of which he was innocent.  He added that subsequent to the administering of the NJP, the applicant went before a separation board and the board found no misconduct in the applicant's case and retained him in the Army.   

12.  His record contains deployment orders in support of Operation Iraqi Freedom (OIF).  He was scheduled to proceed on 4 February 2005 for a period not to exceed 545 days.  

13.  His LES for the period 1 through 31 May 2005 shows that during his deployment in support of OIF, he received a refund of $2,000 for the cancellation of his fine under the UCMJ.  

14.  A letter from Headquarters (HQ), U.S. Army Reserve Command (USARC) addressed to the applicant’s Member of Congress (MOC), dated 15 November 2006, shows his MOC expressed concern over the applicant’s complaints of prejudicial treatment, negative counseling, harassment, and other forms of maltreatment directed against him.  The Chief of Staff, a brigadier general (BG) for HQ, USARC, stated the applicant accumulated a record of disciplinary infractions and repeated acts of insubordination towards his superior officers that led to at least three instances of NJP.  His commanding officers tried to rehabilitate him through counseling and training opportunities but unfortunately, the applicant committed additional acts of insubordination and was being separated from the Army.  

15.  A second letter from the same BG addressed to the applicant’s MOC, dated 9 April 2007, shows the applicant was awaiting a second separation board pursuant to Army Regulation 635-200.  He was receiving all due process and his rights were being protected.

16.  The applicant’s OMPF contains an Annual NCOER for the period 1 June 2006 through 31 May 2007.  The rater, senior rater, and reviewer all signed the report on 24 September 2007.  The report was not signed by the applicant and contains the following entries:

    a.  Part IV – (Army Values/Attributes/Skills/Actions) contains an "X" in the "NO" entry of item 3 (Respect/Equal Opportunity), item 5 (Honor) contains the following comments from the rater:  "Soldier with administrative separation board actions and procedures," and "Soldier with disrespect towards a superior commissioned officer this period."

    b.  Part IV – (Values and Noncommissioned Officer (NCO) Responsibilities) contains an "X" in needs improvement under item d (Leadership).  It contains the comment "Soldier detached to the 400th Quartermaster Company for rehabilitation and improvement."

    c.  Part V (Overall Performance and Potential) contains an "X" in the Fully Capable block and two "X"s in (4 - Fair) block  of Senior Rater – Overall Performance and Overall Potential.  It also contains the following comments:

        (1)  Part IV – Soldier with administrative separation board actions and procedures.

        (2)  Part V – Soldier pending appearance before a separation board.   

17.  A memorandum, dated 10 July 2007, shows counsel submitted a request for relief based on a 1 July 2007, Administrative Separation Board, which recommended that he be separated from the service with an under other than honorable conditions discharge.  A copy of this board packet is not available for review. 

18.  His counsel also stated that inconsistencies existed with the testimonies of members of his chain of command.  There was also demonstrated prejudicial behavior from the president of the board who was also a JAG officer.  The president of the board further obstructed the applicant's legal rights when he stopped the applicant during his unsworn statement, by using harsh tones and demanded production of prior separation board results.  Counsel requested that the separation action be disapproved or, in the alternative, suspended for a 
12 month period and that the applicant be allowed to move to a different unit. 

19.  Two additional inquires were initiated by his MOC which were responded to by HQ, USARC, on 8 April, and 17 October 2008.  Those responses show that the separation board proceedings, dated 30 June 2007, were sent to HQ, Department of the Army and Administrative Law Division, Office of The Judge Advocate General (OTJAG).  The OTJAG found the discharge action to be legally objectionable and returned the case to the convening authority.

20.  HQ, USARC also noted that the 2 December 2004 administrative separation board found that the allegations of misconduct against the applicant were not supported by the evidence.  The only documents filed in the applicant's OMPF associated with his offenses are two DA Forms 4187 which show the dates the applicant went AWOL.  Those documents are filed in accordance with the applicable Army regulation and the applicant may request removal through the Commander, Army Human Resources Command.





21.  The following documents are filed in the applicant's OMPF:

* Contested Report for the period 20060601 through 20070531 – performance section
* Two DA Forms 4187 – service section
* One DA form 2627 – restricted section

22.  The applicant provided copies of prior and subsequent NCOERs to the contested report.  These reports show a mix of "Excellence" and "Success" markings from the raters; and ratings of "Superior" in the overall performance and overall potential blocks from the Senior Raters.  

23.  He also provided several letters of support which show the authors attested to the applicant's outstanding performance of duty and his professionalism while working with him over the years. 

24.  He also provided a copy of an award of the Army Achievement Medal for the period 7 June 2004 through 4 July 2005, and orders awarding him the Army Good Conduct Medal (3rd Award) for the period 18 December 2004 through 
17 December 2007. 

25.  A letter from a clinical psychologist in Lexington, KY, dated 4 November 2009, shows he had been a patient at the clinic since 9 January 2009 where he was being treated for depression.  He was also taking medication for this condition. 

26.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial.  It provides that a commander should use non-punitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ.  The use of NJP is proper in all cases involving minor offenses of which non-punitive measures are considered inadequate or inappropriate.  

27.  Army Regulation 27-10 states that setting aside punishment imposed under Article 15, UCMJ is an action whereby the punishment or any part or amount, whether executed or unexecuted is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is “wholly set aside” when the commander who imposed the punishment sets aside all punishment imposed upon an individual under NJP.


28.  Paragraph 3-43 of Army Regulation 27-10 contains guidance on the transfer or removal of records of NJP from the OMPF.  It states applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly completed, facially valid DA Form 2627 from a Soldier’s record by the ABCMR.

29.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records), Table 2-1 (Composition of the OMPF) shows the DA Form 2627 is filed in either the performance or restricted section of the OMPF, as directed by Item 5 of the DA Form 2627.  Approved requests for the release of documents in the restricted section of the OMPF will be filed in the restricted section of the OMPF.  

30.  Paragraph 2-6 (Release of restricted data filed in the OMPF) of this regulation states that restricted data will not be given to any other person or agency, without the approval of the Commanding General, U.S. Army Human Resources Command or HQDA selection board proponent.  

31.  Army Regulation 623-3 (Evaluation Reporting System) states that NCOERs accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  

32.  To justify deletion or amendment of an NCOER, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

33.  Army Regulation 623-3 also states in paragraph 3-17 that no reference will be made to unproven derogatory information or will be made to an incomplete investigation (formal or informal) concerning an NCO.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the NCOER for filing in the Soldier’s OMPF.  If the rated NCO is absolved, comments about the incident will not be included in the NCOER.



34.  Paragraph 3–24 (Prohibited Comments) of Army Regulation 623-3 states that no mention will be made of any punitive or administrative action taken (or planned) against a rated NCO.  This does not preclude mentioning the rated NCO’s underlying misconduct that served as the basis for the action.  For example, when NJP is imposed, and filed in the restricted section, rating officials may not comment on the fact that the NJP was given to the rated NCO.  This does not preclude mentioning the rated NCO’s underlying misconduct, which served as the basis for the NJP.  No remarks on this report will be made on performance or incidents occurring before or after the current rating period.

DISCUSSION AND CONCLUSIONS:

1.  Clearly the NCOER covering the period 1 June 2006 through 31 May 2007, which is on file in the applicant’s OMPF, contains material errors and creates an injustice for the applicant.  The errors are contained in Part IV “Soldier with administrative separation board actions and procedures” and in Part V “Soldier pending appearance before a separation board.”  Army Regulation 623-3 strictly prohibits comments of any punitive or administrative action taken or planned.  It also prohibits remarks about incidents occurring before or after the current rating period.  

2.  The evidence of record shows he was retained on active duty after the 2004 separation board.  The second separation board did not convene until July 2007, and the proceedings were returned from the OTJAG because it was found to be legally objectionable.  Both boards occurred outside of the period of the contested report; therefore, no instance surrounding the separation board actions should have been mentioned in the contested report.  

3.  As such, it would be appropriate to remove the following comments from the contested report:

* Part IV – "Soldier with administrative separation board actions and procedures"
* Part V – "Soldier pending appearance before separation board"  

4.  The December 2004 separation board found the allegations against the applicant to be without merit and at least one board member later commented on the fact that the applicant was unfairly targeted by a spiteful command.  

5.  As a result, the applicant's trial defense counsel requested the NJP be wholly set aside.  A copy of the paperwork which set aside the NJP is not available for review; however, the evidence presented confirms that at least a portion of the NJP was set aside and he was refunded the $2,000 collected as a result of the NJP.  

6.  The situation surrounding the administering of the NJP and the December 2004 separation board appears to be unfair and as a matter of equity; therefore, it would now be appropriate to completely remove the DA Form 2627 from the restricted section of his OMPF.

7.  The two DA Forms 4187 that are contained in the applicant's OMPF merely reflects the applicant's duty status at the time.  He has not provided sufficient evidence and his record does not contain sufficient evidence to show this period of AWOL was erroneous.  Whether or not disciplinary action is taken as a result of a period of AWOL is at the discretion of the commander.  As such, there is no basis to remove these two DA Forms 4187.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  ____x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for a partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the following comments from the contested report for period 20060601 through 20070531:

* Part IV – "Soldier with administrative separation board actions and procedures"
* Part V – "Soldier pending appearance before separation board"; and

    b.  removing the DA Form 2627, dated 1 September 2004 from the restricted section of his OMPF.   


2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the two DA Forms 4187 from the applicant's OMPF.




      _______ _   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)                                         AR20100027478



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ABCMR Record of Proceedings (cont)                                         AR20100027478



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