IN THE CASE OF:	  

		BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100028417 


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, in effect, set aside and removal of the DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 18 December 2006; the written reprimand and any allied documents (if they exist); and the relief-for-cause (RFC) DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 July through 14 November 2006 from his official military personnel file (OMPF).  He also requests restoration of his rank, including all pay and allowances, and consideration for promotion to sergeant first class (SFC) by a Headquarters, Department of the Army (HQDA), Enlisted Standby Advisory Board (STAB).

2.  The applicant states the clear-cut evidence he provides proves he became the scapegoat in a sorely-troubled unit.  The evidence shows poor morale, vindictive leadership, unfair punishment, and a lack of integrity in the leadership.  He adds that the chaplain who conducted sensing sessions, along with several NCO's in the unit, provide evidence in support of his request.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant's OMPF be entirely cleansed of any matter related to the "phantom" Article 15, including the written reprimand and RFC NCOER, and consideration of the applicant for promotion to SFC by an HQDA STAB.  He also requests correction of the applicant's NCOER covering the period 15 November 2006 through 30 June 2007.

2.  Counsel states, in effect, the evidence provided by the chaplain, in the form of the unit's sensing session assessment, and the statements of NCO's in the unit offer credible testimony of a sorely-troubled unit and clearly show the applicant was made a scapegoat.  Counsel states:

	a.  The applicant is a solid career NCO, trained in military occupational specialty (MOS) 31B (Military Police), who served in Saudi Arabia, Egypt, and Afghanistan and earned numerous awards and decorations.

	b.  The applicant was provided training in customs duties at Fort Gordon, GA, prior to his deployment to Afghanistan and he was not new to customs duty.

		(1)  The training was out-of-date.  It included generic customs rules, search techniques, and a generalized list of prohibited items.  However, the training failed to address what to do with caches of foreign and U.S. weapons; confiscation of weapons from local nationals; the reliability of Afghan forces; and whether weapons could be transferred to special forces (SF) troops.

		(2)  The applicant sensed that the company commander, Captain (CPT) 
M____ S. D____, was a remote figurehead and that First Sergeant (1SG) G____ was a blowhard.

	c.  The unit deployed to Afghanistan in March 2006.  As Noncommissioned Officer in Charge (NCOIC) of the Customs Office, 35th Military Police (MP) Detachment, the applicant's customs team faced numerous challenges (i.e., new rules, trials, and situations) with no guidance from the chain of command.  He adds the company commander (CPT D____) was an absentee manager and the first sergeant (1SG G____) denigrated the Soldiers and failed to lead.

		(1)  There were four problem areas that included malfunctioning ordnance, an abandoned machinegun, weapons for SF troops, and a huge surge in workload.

		(a)  The applicant ensured an MP-5 machinegun was signed over to the explosive ordnance detachment for destruction.  Standing operating procedures were then put in place governing the transfer of the majority of functioning weapons to the Afghan National Army.

		(b)  Sergeant (SGT) M____, an SF supply sergeant, gave some hand-made knives to the customs office as a gesture of good-will.  SFC O____, an SF NCO, gave a box of miscellaneous items (watches and sunglasses) to the customs office as a gift.  The applicant asserts there is nothing in the customs rules prohibiting gifts between American Soldiers.

		(c)  The chain of command misunderstood the situation and thought that the applicant had solicited the items for personal use.  The items were distributed to other Soldiers in the unit and the applicant claims the company commander and first sergeant wanted the knives.

		(2)  There were three charges against the applicant that included graft, disobeying a superior, and unlawful distribution of government property, all of which were refuted, as follows:

		(a)  Well after the customs inspections, the two SF NCO's decided to say "thank you" to members in the customs office for their hard work by giving them a handful of expendable, hand-me-down items.

		(b)  The items were distributed to Soldiers to boost morale and the applicant did not keep any of the items for himself.

		(c)  CPT D____ claimed that the applicant had sent some of the items back to the United States and also sold items via the Internet on eBay.  However, the Criminal Investigation Command found no evidence.

		(d)  The applicant did not disobey a superior commissioned officer because there was no order (written or verbal) issued prohibiting one from accepting items from another Soldier.  The sole guidance was that inspectors could not take anything during inspections or as an inducement or reward.

		(3)  The applicant and others sought the assistance of the chaplain, who conducted a unit sensing session.  Afterwards, the applicant was blamed when significant problems, poor morale, and the questionable integrity of the unit's leaders were raised during the sensing session.

		(a)  The chaplain's report (i.e., 35th MP Detachment Sensing Session Feedback and Assessment) shows that Soldiers expressed little confidence in the integrity and leadership abilities of the chain of command.  It also shows the unit's leadership failed to apply equitable standards, was only interested in "looking good," and was unfair and inconsistent in the equal treatment of Soldiers.

		(b)  The chaplain indicated the applicant is a competent and professional NCO who enjoyed the confidence of Soldiers in his unit in terms of leadership and character, and his integrity was never in question.

		(4)  After redeploying to Fort Huachuca, Arizona, the applicant was told to stay away from welcome home ceremonies, denied awards and decorations, and his security clearance was suspended.

	d.  Counsel states the applicant received substandard ratings on his next NCOER (covering the period 15 November 2006 through 30 June 2007) despite the fact that he was never counseled on any supposed shortcomings.  He adds the report contains administrative inaccuracies because the rater indicates she counseled the applicant on 22 December 2006; however, this is not possible since the applicant was in Afghanistan until 31 December 2006.

	e.  Counsel concludes by stating that when an NCO or subordinate Soldier challenges the chain of command, they lose 99 percent of the time.  However, the Army Board for Correction of Military Records has the opportunity to correct this injustice.

3.  Counsel provides a recommendation from the chaplain and his unit sensing session assessment, a buddy statement, customs guidance, a general order, the DA Form 2627 with allied documents, four witness statements, and four character statements.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the Army National Guard of the United States and California Army National Guard from 25 March 1986 through 6 October 1992.  Upon completion of training he was awarded MOS 95B (Military Police) (later converted to MOS 31B).  He served in Saudi Arabia in support of Operation Desert Shield/Desert Storm from 23 July through 25 November 1991.

2. The applicant enlisted in the Regular Army on 7 October 1992.  He served overseas in:

* Germany from 21 October 1992 to 18 October 1994
* Japan from 12 November 1995 to 13 April 1999
* Hawaii from 29 November 2000 to 28 November 2003

3.  The applicant was promoted to staff sergeant (SSG)/pay grade E-6 in MOS 31B on 1 March 2001.  He served in Afghanistan in support of Operation Enduring Freedom from 4 March to 31 December 2006.

4.  A review of the applicant's OMPF maintained in the interactive Personnel Electronic Records Management System (iPERMS) failed to reveal a copy of a DA Form 2627, dated 18 December 2006, written reprimand, or any adverse documents related to the Article 15.

5.  A DA Form 2166-8 shows the applicant was issued an RFC NCOER covering the period 1 July 2006 through 14 November 2006 for his performance while assigned as Military Police Desk Sergeant, 35th MP Detachment, Bagram Airfield, Afghanistan.

	a.  Part II (Authentication) shows the applicant's rating chain at the time was:

* Rater – SFC B____ L. D____, Operations Sergeant, 35th MP Detachment
* Senior Rater – Major (MAJ) D____ E. N____, Provost Marshal, 35th MP Detachment
* Reviewer – Lieutenant Colonel (LTC) M____ R. T____, Deputy Commander, Task Force Guardian

	b.  Part III (Duty Description) shows, in pertinent part, "…responsible for the supervision of four other Military Police Desk Sergeants; inventories and secures property, arms and ammunition in excess of $25,000."

	c.  The basis of the RFC NCOER was the applicant's demonstrated lack of sound judgment in the performance of his duties, and placing Soldiers in an ethical dilemma by compromising his integrity while in the performance of his duties as the Bagram Customs Border Clearance NCOIC.

	d.  The NCOER shows the applicant had been notified of the reason for relief.

	e.  The applicant placed his signature in Part IIe (Rated NCO), on 20 December 2006, indicating he had verified the administrative data on the NCOER and that he was aware of the appeals process.

6.  A review of the applicant's OMPF maintained in iPERMS failed to reveal any evidence that the applicant appealed the RFC NCOER.

7.  A DA Form 2166-8 shows the applicant was issued a change-of-rater (CR) NCOER covering the period 15 November 2006 through 30 June 2007 for his performance while assigned as Team Leader, 18th MP Detachment, U.S. Army Garrison, Fort Huachuca, Arizona.

	a.  Part II shows the applicant's rating chain at the time was:

* Rater – SFC L____ E____, Platoon Sergeant, 18th MP Detachment
* Senior Rater – 1SG D____ D. L____, First Sergeant, 18th MP Detachment
* Reviewer – CPT T____ E. A____, Commander, 18th MP Detachment

	b.  Part IIIf (Counseling Dates) shows he was counseled on 22 December 2006, 9 March 2007, and 8 June 2007.

	c.  Part IV (Army Values/Attributes/Skills/Actions) shows the rater placed an "X" in the "Yes" block for each item indicating a positive assessment.

	d.  Part IV (Values/NCO Responsibilities) shows the rater placed an "X" in the "Success" block in all five categories indicating favorable assessments.

	e.  Part V (Overall Performance and Potential) shows:

		(1)  the rater placed an "X" in the "Fully Capable" block for service in positions of greater responsibility, and

		(2)  the senior rated placed an "X" in the "3" block (Successful) for overall performance and an "X" in the"3" block (Superior) for overall potential for promotion and/or service in positions of greater responsibility.

	f.  The applicant placed his signature in Part IIe on 10 July 2007 indicating he verified the administrative data on the NCOER and he was aware of the appeals process.

8.  A review of the applicant's OMPF maintained in iPERMS failed to reveal any evidence the applicant appealed the CR NCOER.

9.  The applicant was promoted to SSG/E-6 in MOS 31B on 1 January 2009.

10.  In support of his application, the applicant and his counsel provide the following documents:

	a.  A memorandum under the signature of Chaplain (CH) (MAJ) 
J____ B. L____, who was the chaplain for Task Force Vigilant, which included the applicant's unit.  He met the applicant while in Afghanistan and found him to be admired by his peers and subordinates for his leadership, character, and integrity.  CH L____ states:

		(1)  The applicant was accused of conduct unbecoming an NCO, deemed guilty, and reduced in rank.  In the aftermath, there were other disciplinary and UCMJ actions in the unit, and the overall morale of Soldiers was at a low point.

		(2)  He conducted a sensing session and submitted his assessment to the chain of command.  CH L____ asserts the applicant was the victim of a command team that was vindictive and set their Soldiers up for failure.

	b.  A 35th MP Detachment Sensing Session Feedback and Assessment , dated 28 September 2006, conducted during the period 14-16 September 2006 by CH B____ L____ shows:

		(1)  He conducted sensing sessions with the majority of the Soldiers and NCO's in the detachment and used scaling questions to gauge matters.

		(2)  The consensus was that, with the exception of a few NCO's, there was little confidence in the leadership abilities of the chain of command; the leadership did not adhere to the same standards that are enforced among Soldiers; there was favoritism; and the command team openly spoke negatively about various Soldiers.

		(3)  He found that there was distrust among the NCO's and that alliances were often formed within the unit.

		(4)  He recommended the leadership of the unit take appropriate actions to rebuild trust and confidence in the chain of command.

	c.  A statement by SGT J____ S____ who states he is a friend of the applicant and that he had the same chain of command as the applicant in the United States before they deployed to Afghanistan.

		(1)  He recounts episodes of being pressured into taking correspondence courses and going before the Soldier of the month board.  When he didn't do so, the chain of command tried to give him a bad NCOER.

		(2)  He states, in Afghanistan, the company commander and first sergeant would send Soldiers who they didn't like "down the road to Kabul."

		(3)  While serving in Afghanistan, he worked in the customs office with the applicant and didn't see him do anything wrong.  He adds that SF Soldiers had everything and they were generous.  If you helped them, they would give you a gift, like a bench knife.

		(4)  He notes the applicant once told him that he couldn't have a knife (at the time) because the company commander and first sergeant each wanted one.  He adds that the applicant was not giving any special favors to anybody.

		(5)  He states he couldn't understand why the applicant received an Article 15 and RFC NCOER because he didn't do anything wrong.

	d.  Combined/Joint Task Force-76 (CJTF-76), Operation Enduring Freedom, 35th MP Detachment, Bagram Airfield, Afghanistan, memorandum, dated 27 March 2006, subject:  Inspection Procedures During Customs Appointments, issued under the signature block of CPT M____ S. D____, Provost Marshal.  The document outlines what is expected during customs inspections and the applicant is listed as the point of contact.

	e.  Headquarters, Multi-National Corps-Iraq (MNC-I), Baghdad, Iraq, General Order Number 1 (GO-1), dated 12 February 2005, Title:  Prohibited Activities for U.S. Department of Defense Personnel Assigned to the MNC-I or Present Within the MNC-I Area of Responsibility (AOR).  The general orders identify conduct that is prejudicial to the maintenance of good order and discipline of all forces assigned to the MNC-I or present within the MNC-I AOR.

		(1)  Paragraph 2 (Prohibited Activities) provides that in accordance with and in addition to U.S. Central Command, GO-1A, the following activities are prohibited and shows, in pertinent part, in paragraph k, "Taking or retaining individual souvenirs or trophies, except as noted below:  (1) Private or public property may be seized during exercises or operations only on order of the Commander, MNC-1, or his delegated representative, when based on military necessity and in accordance with the rules of engagement.  Such property will be collected, processed, secured and stored for later return to the lawful owner."

		(2)  Subparagraph (3) states, "No weapon, munitions, or military article of equipment obtained or acquired by any means other than official issue may be retained for personal use or shipped out of the AOR for personal retention or control unless authorized by the Commander, MNC-I."

		(3)  Subparagraph (4) states, "This prohibition does not preclude the lawful acquisition of souvenirs that can be legally imported into the United States.  The following items have been approved as authorized souvenirs:  helmets and head coverings; bayonets; uniforms and uniform items such as insignia and patches; canteens, compasses, rucksacks, pouches, and load bearing equipment; flags; military training manuals, books, and pamphlets; posters, placards, and photographs; or other items that clearly pose no safety or health risk, and are not otherwise prohibited by law or regulation.  All acquired items are subject to the war souvenir retention process and must be approved by the appropriate reviewing officer.  In accordance with MNC-I FRAGO 076 (9 January 2005), each company commander or person in the rank of LTC/O5 or above is designated as a reviewing officer."

		(4)  Paragraph 3 states, in pertinent part, "Punitive Order:  Paragraph 2 of this general order is punitive.  Persons subject to the UCMJ may be punished for violations of this general order.

		(5)  The general order was effective immediately upon promulgation and expires when rescinded by the Commander, MNC-I, or higher authority.

	f.  A DA Form 2627 that shows, on 2 November 2006, the applicant received nonjudicial punishment (NJP) for:

		(1)  on divers occasions between 1 March and 30 June 2006, wrongfully receiving from members of the Combined/Joint Special Operations Training Force (CJSOTF), various items of military property issued to special operations personnel, to wit:  Benchmade knives, Ontario knives, Suunto watches, Oakley sunglasses, Hellstorm gloves, Surefire flashlights, Brinkmann flashlights, and London Bridge assault packs, of a value of over $5,000.00 in recognition for service rendered by the applicant in relation to an official matter in which the United States was and is interested, to wit:  the customs inspections of CJSOTF property;

		(2)  on divers occasions between 1 March and 30 June 2006, willfully disobeying a lawful command from his superior commissioned officer to refrain from accepting gifts under any circumstances;

		(3)  between 1 March and 30 June 2006, without proper authority, disposing of military property of the United States of a value of approximately $200.00 by giving a Benchmade knife to each of five different U.S. Soldiers;

		(4)  between 1 March and 30 June 2006, without proper authority, disposing of military property of the United States of a value of approximately $375.00 by giving a Benchmade knife and a pair of Oakley boots to a U.S. Soldier;

		(5)  between 3 March and 15 June 2006, without proper authority, disposing of military property of the United States of a value of approximately $400.00 by giving a pair of Oakley sunglasses and a Suunto X6 watch to a U.S. Soldier;

		(6)  between 1 April and 30 May 2006, without proper authority, disposing of military property of the United States of a value of approximately $275.00 by giving a Benchmade knife, Blackhawk lanyard, and a pair of Hellstorm Fury Commando gloves to a U.S. Soldier; and

		(7)  between 3 March and 15 June 2006, without proper authority, disposing of military property of the United States of a value of approximately $475.00 by giving a pair of Oakley sunglasses, a Benchmade knife, and a pair of Oakley boots to a U.S. Soldier.

		(a)  The applicant requested a closed hearing; a person to speak in his behalf; and indicated that matters in defense, mitigation, and/or extenuation would be presented in person.  The applicant's 3-page written statement, dated 14 November 2006, shows the applicant acknowledged he was fully aware of the ethical issues, as well as the order given by the commander (CPT D____) not to take anything from anyone on any customs missions.  He offered an explanation of how he acquired various items, including items cited in the Article 15, and how he disposed of the items.  He asserted the items were not acquired based on any special favors and he does not believe he did anything unethical.

		(b)  On 14 November 2006, in a closed hearing during which all matters in defense, mitigation, and/or extenuation were presented and considered, the Commander, Task Force Guardian, imposed the following punishment:  reduction to SGT (E-5); forfeiture of $1,263.00 pay per month for 2 months; and a written reprimand.  She also directed that the original DA Form 2627 be filed in the performance section of the applicant's OMPF.  Item 11 (Allied Documents and/or Comments) identifies a written reprimand, dated 16 November 2006.

		(c)  Headquarters, CJTF, Task Force Guardian, Bagram Airfield, Afghanistan, memorandum, dated 16 November 2006, subject:  Letter of Reprimand, shows that Colonel R____ M. M____ issued the memorandum as a punitive reprimand imposed under the provisions of Article 15, UCMJ.

		(d)  On 17 November 2006, the applicant appealed the NJP and submitted additional matters.

		(e)  On 18 December 2006, the Commander, CJTF-76, denied the applicant's appeal.

	g.  Three DA Forms 2823 (Sworn Statements), dated 26 August 2006, 28 August 2006, and 2 September 2006, made by [then] Specialist R____ B. R____, that provide increasingly more information regarding his acquisition of a Benchmark knife, a pair of Oakley boots, and a Surefire flashlight from the applicant.  He also describes procedures they used in conducting customs inspections.

	h.  An email from SGT R____ B. R____, undated, in which he states he was coerced by CPT D____ into making the [above referenced three] statements about the applicant and coached about what to include in his sworn statements.

	i.  Four character statements from Mr. O____ J. S____, dated 11 December 2007, SFC J____ G. P____, dated 20 January 2008, Sergeant Major 
R____ H____, dated 25 January 2008, and 1SG K____ K. F____, dated 30 January 2008, who attest to the applicant's technical and tactical expertise, and his professionalism.

11.  Army Regulation 27-10 (Military Justice), chapter 3 (NJP), paragraph 3-28 (Setting Aside and Restoration), provides that this 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.

	a.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.

	b.  "Clear injustice" means there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) provides policies, operating tasks, and steps governing the OMPF.

	a.  Only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or No Longer Used Documents) are authorized for filing in the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file.

	b.  Depending on the purpose, documents will be filed in the OMPF in one of the three sections:  performance, service, or restricted.  It shows the:

		(1)  DA Form 2166-8 (NCOER) is filed in the performance section, and

		(2)  DA Form 2627 (Article 15) is filed in either the performance or restricted section, as directed by item 5 of the DA Form 2627; allied documents accompanying the Article 15 are filed in the restricted section.

13.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.

	a.  Chapter 7 (Appeals and Petitions), provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF.

	b.  Paragraph 7-2 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.

14.  Army Regulation 623-3 (Evaluation Reporting System), chapter 3 (Army Evaluation Principles), paragraph 3-59 (RFC DA Form 2166-8), provides that an NCOER report is required when an NCO is relieved for cause regardless of the rating period involved.

	a.  RFC is defined as the removal of an NCO from a rateable assignment based on a decision by a member of the NCO's chain of command or supervisory chain.  An RFC occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army.

	b.  Chapter 6 (Evaluation Redress Program) provides policy and procedures for evaluation appeals.  Paragraph 6-8 (Timeliness) provides:

		(1)  substantive appeals will be submitted within 3 years of an NCOER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant an exception.

		(2)  administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  However, as a rule, the likelihood of successfully appealing a report diminishes with the passage of time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the Article 15, dated 18 December 2006, written reprimand, and all allied documents, and RFC NCOER covering the period 1 July through 14 November 2006 should be set aside and removed from the applicant's OMPF; his rank (SSG) should be restored as of the date he was reduced in rank, along with payment of all back pay and allowances; and consideration for promotion to SFC by a HQDA STAB.  His counsel also contends that the CR NCOER covering the period 15 November 2006 through 30 June 2007 should be corrected.

2.  The applicant's and his counsel's contentions were carefully considered.

	a.  A MNC-I general order outlined the prohibited activities for personnel assigned to or present in the MNC-I AOR and procedures for processing prohibited items.  In addition, the general order shows that specific acquired items are subject to the war souvenir retention process and must be approved by the appropriate reviewing officer.

	b.  Records show the applicant's task force commander notified him of his intent to impose NJP and the applicant presented matters in defense, mitigation, and/or extenuation in a closed hearing.

		(1)  The applicant's written statement shows the applicant acknowledged that he was fully aware of the ethical issues, as well as the order given by the company commander not to take anything from anyone on any customs missions.

		(2)  The task force commander considered the evidence and directed that the applicant be reduced to SGT/E-5, forfeit $1,263.00 pay per month for 2 months, and she issued a written reprimand to the applicant.  She also directed that the original DA Form 2627 be filed in the performance section of the applicant's OMPF.

		(3)  The applicant appealed the NJP imposed by the task force commander and the appeal authority denied his appeal.

		(4)  While the DA Form 2627 and allied documents are not filed in the applicant's OMPF, this does not imply that an appropriate authority set aside the Article 15.  In this regard, there is no evidence that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the applicant.

	c.  Thus, after a careful review of the evidence of record, it is concluded that the applicant and his counsel have not submitted compelling evidence to disprove the facially valid DA Form 2627.  Therefore, in view of the foregoing, it is concluded that the DA Form 2627 is administratively correct, and the findings and sentence were appropriate for the circumstances.

3.  Records show the applicant verified that the administrative information on the RFC NCOER covering the period 1 July through 14 November 2006 was correct.  Records also show that the applicant was notified of the reason for relief and he acknowledged he was aware of the appeals process.

	a.  The NCOER is properly filed in the performance section of the applicant's OMPF.

	b.  There is no evidence the applicant appealed the RFC NCOER within 3 years of the NCOER's through date.

	c.  The applicant provides no evidence of errors, discrepancies, or wrongdoing in the preparation of the contested NCOER by the rater or senior rater.

	d.  There is no evidence of material error, inaccuracy or injustice in the contested NCOER, or that would support a conclusion the NCOER does not represent the considered opinions and objective evaluations of the rating officials.

	e.  Therefore, in view of the foregoing, there is no basis for setting aside or removing the RFC NCOER from the applicant's OMPF.

4.  Records show the applicant verified that the administrative information on the CR NCOER covering the period 15 November 2006 through 30 June 2007 was correct and that he had been counseled on the three listed dates during the rating period.  Thus, records refute the applicant's and his counsel's contention that he was not counseled during the rating period.

	a.  It is noted that the date of the initial counseling shown on the NCOER is prior to the date the applicant departed Afghanistan to return to the United States.  However, the initial counseling date was within the NCOER reporting period and the applicant acknowledged with his signature that the date was correct.  Thus, there is insufficient evidence to support changing the date.  Moreover, if the date is in error, it is deemed a harmless error because the applicant acknowledged that he was counseled.

	b.  The NCOER is properly filed in the performance section of the applicant's OMPF.

	c.  The NCOER shows the rater and senior rater provided positive ratings and assessments of the applicant on his CR NCOER.  Moreover, the applicant provides no evidence of errors, discrepancies, or wrongdoing in the preparation of the CR NCOER by the rater or senior rater.

	d.  The applicant acknowledged with his signature that he was aware of the appeals process.  However, there is no evidence he appealed the CR NCOER based on substantive reasons within 3 years of the NCOER's through date.

	e.  There is no evidence of material error, inaccuracy or injustice in the contested NCOER, or that would support a conclusion the NCOER does not represent the considered opinions and objective evaluations of the rating officials.

	f.  Therefore, in view of the foregoing, there is no basis for correcting, setting aside or removing the CR NCOER from the applicant's OMPF.

5.  The letters and documents the applicant provides in support of his application to set aside or remove the Article 15 and RFC NCOER from his OMPF were considered.  However, they provide insufficient evidence to support his claim that the evidence does not support the charges that were the basis for the Article 15 and subsequent RFC NCOER.

6.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing that the document is untrue or unjust. The applicant failed to submit sufficient evidence that the documents in question that are filed in his OMPF are untrue or unjust.  Therefore, the two NCOER's in question are deemed to be properly filed and should be retained in the applicant's OMPF.

7.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant and his counsel failed to submit evidence that would satisfy this requirement.



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)                                         AR20100028417



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100028417



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1