IN THE CASE OF:	  

		BOARD DATE:  23 February 2012

		DOCKET NUMBER:  AR20110016303 


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, UCMJ (Uniform Code of Military Justice)), dated 24 May 2007, that is filed in the performance section of his Official Military Personnel File (OMPF) be transferred to the restricted section of his OMPF.

2.  The applicant states he is sorry for lying, he takes full responsibility for his actions, and he understands the reason for the nonjudicial punishment (NJP).  He adds the NJP was not imposed in error nor was it unjust.  However, since the NJP was imposed, he has spent every day reexamining his past and working hard at developing his character with a focus on honor and integrity.

   a.  He continues to try to make things right with those he wronged when he wrote the letter trying to defend his actions.  He takes great pride in his military service and asserts that the basis for the NJP is not a true reflection of him as an officer.

   b.  He was discharged from the U.S. Army in 2009 and works as a social worker for the Department of Veterans Affairs (VA) helping veterans as they transition into civilian life.  He is progressing in his professional career and would like to serve again as a commissioned officer in the U.S. Army in specialty 73A (Social Worker).


   c.  The purpose of the NJP has been served and he has learned several lessons from it.  Prior to discharge he received a DA Form 67-9 (Officer Evaluation Report (OER)) that shows he demonstrated improvement in the area of integrity.  He has also received a favorable performance report from his VA supervisor that shows he demonstrated excellence in all critical elements of his job, including the values of integrity, respect, communication, cooperation, and competence.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), VA Performance Appraisal, and Eastern Colorado Health Care System (ECHCS) Competency Assessment.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the DA Form 2627, dated 24 May 2007, that is filed in the performance section of the applicant's OMPF be transferred to the restricted section of his OMPF.

2.  Counsel states, in effect, he defers to the applicant's argument.

3.  Counsel provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Army National Guard (ARNG) of the United States and Oregon ARNG from 31 May 1991 to
25 September 1994.

2.  On 14 June 1996, he was appointed as a Reserve commissioned officer in the rank of second lieutenant in the Medical Service Corps and he was awarded specialty 67D (Behavioral Sciences Officer).

3.  He was ordered to active duty on 10 November 1998 and promoted to the rank of captain on 1 October 2000.

4.  On 1 February 2007, the applicant received a general officer memorandum of reprimand (GOMOR) for disorderly conduct at the Hard Times Café in Germantown, Maryland on 16 May 2006.

   a.  On 27 February 2007, the applicant submitted his response to the GOMOR concerning the incident.  He stated, in part, "I stood before the judge and my identity was confirmed not to be the individual apprehended by the police on the date in question and the charges [were] dropped against me.  The arrest record and court record were expunged on 3 October 2006 per my request following the court date."

   b.  On 24 May 2007, after considering all available matters, the commanding general approved the GOMOR for filing in the applicant's OMPF.
   
   c.  The GOMOR and allied documents are filed in the performance section of the applicant's OMPF.

5.  A DA Form 2627, dated 24 May 2007, shows the Commanding General, Fort Carson, CO, notified the applicant of his intent to impose NJP against him for:

* on 23 April 2007, with intent to deceive, making an official statement that was totally false
* on 27 February 2007, with intent to deceive, making an official statement that was totally false
* on diverse occasions between 1 February and 23 May 2007, falsely and dishonorably representing himself to diverse individuals to have lost his driver's license in April 2006, and to have had no involvement at the Hard Times Café on 16 May 2006 in Germantown, Maryland, acts that under the circumstances constitute conduct unbecoming an officer and gentleman

6.  The DA Form 2627 also shows:

	a.  The applicant was advised of his rights and afforded the opportunity to consult with counsel.

	b.  The applicant did not demand a trial by court-martial.  He requested an open hearing and a person to speak in his behalf.  He also indicated that matters in defense, mitigation, and/or extenuation would be presented in person.

	c.  On 21 June 2007, in an open hearing, having considered all matters presented, the Commanding General, Fort Carson, found the applicant was guilty of all specifications.

	d.  His imposed punishment was a forfeiture of $2,416.00 pay for 2 months.  Item 5 shows the imposing authority directed that the DA Form 2627 be filed in the performance section of the applicant's OMPF.

	e.  The applicant indicated he would appeal the NJP.  On 26 June 2007, he submitted his appeal, which was based on financial hardship.

   f.  On 20 July 2007, the Staff Judge Advocate, U.S. Army Forces Command (FORSCOM), Fort McPherson, GA, reviewed the proceedings and determined they were conducted in accordance with law and regulation and that the punishment imposed was not unjust or disproportionate to the offenses committed.
   
   g.  On 20 July 2007, after considering all matters presented in the appeal, the Deputy Commanding General/Chief of Staff, FORSCOM, denied the appeal.

	h.  The DA Form 2627 is filed in the performance section of the applicant's OMPF.

7.  An annual OER for the period 17 July 2006 through 16 July 2007 shows the applicant performed the principal duty of Chief, Social Worker while assigned to the U.S. Army Medical Activity, Fort Carson, CO.  Part IV (Performance Evaluation - Professionalism), block a (Army Values), shows the rater placed an "X" in the "No" column for "Honor" and "Integrity."  The rater evaluated his performance and potential as "Unsatisfactory Performance, Do Not Promote."  The senior rater evaluated the applicant's promotion potential as "Do Not Promote."

8.  A senior rater option OER for the period 17 July through 17 December 2007 shows the applicant performed the principal duty of Chief, Social Worker/Family Advocacy Program while assigned to the U.S. Army Medical Activity, Fort Carson, CO.  Part IV, block a, shows the rater placed an "X" in the "Yes" column for "Honor" and "Integrity."  The rater evaluated his performance and potential as "Outstanding Performance, Must Promote."  The senior rater evaluated the applicant's promotion potential as "Fully Qualified."  The OER also indicates the applicant failed to meet Army weight standards.

9.  On 18 April 2008, the Secretary of the Army directed the applicant be removed from the major's promotion list as a result of the Promotion Review Board process.  The promotion board which had recommended him for promotion had not seen the GOMOR he received.

10.  On 19 June 2008, a Board of Inquiry and on 21 November 2008, the Department of the Army Board of Review for Eliminations recommended the applicant be involuntarily separated for misconduct with an honorable discharge.  On 30 January 2009, the Deputy Assistant Secretary of the Army (Review Boards), acting for the Secretary of the Army, directed the applicant be separated for disability instead of misconduct.

11.  The applicant's DD Form 214 shows he entered active duty on 10 November 1998 and he was honorably discharged on 15 April 2009 under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4, due to disability with severance pay, non-combat related.  He had served 10 years, 5 months, and 6 days of total active service and he was paid $126,713.40 in disability severance pay.

12.  In support of his application, the applicant provides the following documents.

   a.  A VA Form 0750 (Performance Appraisal Program) covering the period
1 October 2009 through 30 September 2010 that shows the applicant performed duties in the position of Social Worker, Mental Health Service Pueblo Community-Based Outpatient Clinic.   The rater evaluated his achievement as "exceptional" in "direct patient care" and "documentation" and "fully successful" in "interpersonal effectiveness" with an overall performance rating of "excellent."

   b.  An ECHCS Competency Assessment covering the period 23 November 2010 through 30 September 2011 that shows the applicant performed duties in the position of Social Worker, Mental Health Service Pueblo Community-Based Outpatient Clinic.  The rater verified the method of assessment and that the applicant was competent to perform the assessed skills on the Competence Assessment Checklist.

13.  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 that the:

* DA Form 2627 is filed in either the performance or restricted section, as directed in item 5 of the DA Form 2627
* allied documents (including any appeal) to the NJP are filed in the restricted section

14.  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 3 prescribes the requirements, policies, limitations, and procedures for NJP.

	b.  Paragraph 3-43 (Transfer or removal of records of NJP) states that enlisted Soldiers and commissioned officers may request the transfer of a record of NJP from the performance section of their OMPF to the restricted section under the provisions of this regulation.

	 	(1)  To support the request, the person must submit substantive evidence that the intended purpose of UCMJ, Article 15, has been served and that transfer of the record is in the best interest of the Army.

	 	(2)  Requests normally will not be considered until a minimum of 1 year has elapsed and at least 1 nonacademic evaluation report has been received since imposition of the punishment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the DA Form 2627, dated 24 May 2007, that is filed in the performance section of the applicant's OMPF should be transferred to the restricted section of his OMPF because it has served its intended purpose.

2.  The evidence of record shows the NJP was properly administered and that the commander who imposed the NJP against the applicant directed the
DA Form 2627 be filed in the performance section of the applicant's OMPF.

	a.  The applicant acknowledges that the NJP was not imposed in error nor was it unjust.  He now takes full responsibility for his actions.

	b.  The evidence of record shows the DA Form 2627 is filed in the performance section of his OMPF.

3.  The applicant's final OER and favorable civilian evaluation reports were considered and are acknowledged.

	a.  The OER covered the 5-month period that followed the denial of his NJP appeal (on 20 July 2007).  However, on 28 April 2008, the applicant was removed from the major's promotion list by the Secretary of the Army through the Promotion Review Board process.  Subsequently, a Board of Inquiry and the Board of Review recommended the applicant be involuntarily separated for misconduct.  In addition, there are no other OERs documenting his performance through the date he was discharged on 15 April 2009.  Thus, the OER offers insufficient substantive evidence that the intended purpose of NJP has been served.

	b.  The two civilian evaluations are noteworthy.  However, good post-service job performance alone is insufficient as a basis for transferring the NJP.

	c.  As a result of the aforementioned conclusions, there is no basis to grant the applicant's request to transfer the DA Form 2627 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)                                         AR20110016303



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ABCMR Record of Proceedings (cont)                                         AR20110016303



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