IN THE CASE OF:	

		BOARD DATE:	    31 January 2012

		DOCKET NUMBER:  AR20110021267 


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 DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 18 April 2011, from his official military personnel file (OMPF)
* removal of a general officer memorandum of reprimand (GOMOR) from his OMPF
* reinstatement of his rank/grade to staff sergeant (SSG)/E-6

2.  The applicant states the allegations set forth in the Article 15 took place over 2 years prior to the date of imposition; therefore, they were outside of the statute of limitations for nonjudicial punishment (NJP).  Under Army Regulation 27-10 (Military Justice), paragraph 3-12 (Statute of limitations), and UCMJ Article
43(b)(2), it was improper to subject him to NJP for these offenses.

3.  The applicant provides the contested GOMOR and DA Form 2627, and a punishment worksheet.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 27 February 1996.  He completed training and he was awarded military occupational specialty 15T


(UH-60 Helicopter Repairer).  He served in a variety of stateside and overseas assignments over the course of his military career.  He is currently assigned to Headquarters and Headquarters Company, 1st Battalion, 228th Aviation Regiment, Joint Task Force-Bravo, Soto Cano Airbase, Honduras.

2.  On an unknown date he was investigated by Criminal Investigation Command (CID).  He was charged with:

	a.  Making a false official statement in that he signed a DA Form 5960 (Authorization to Start, Stop, or Change Basic Allowance for Quarters and/or Variable Housing Allowance), DD Form 1561 (Statement to Substantiate Payment of Family Separation Allowance), and provided a false residential lease.

* He signed a certain official document or made a certain official statement
* The document or statement was false in certain particulars
* He knew it to be false at the time of signing it or making it
* The false statement was made with the intent to deceive

	b.  Larceny, in that:

* He wrongfully took certain property from the possession of the owner
* The property belonged to the Government
* The property was of a value greater than $500.00
* The taking by the applicant was with the intent to permanently deprive or defraud the Government of the use and benefit of the property
* The property was military property

3.  On 15 April 2011, he accepted NJP under the provisions of Article 15, UCMJ as follows:

	a.  He violated Article 107, UCMJ in that he did on or near Soto Cano Airbase, Honduras, on or about 10 March 2009, with intent to deceive, sign a
DA Form 5960, an official document, which was false in that he claimed his dependents' current address was in Brooklyn, NY, and the address was known by him to be false.

	b.  He violated Article 107, UCMJ in that he did on or near Soto Cano Airbase, Honduras, on or about 10 March 2009, with intent to deceive, sign a
DD Form 1561, an official document, which was false in that he claimed his dependents' current address was in Brooklyn, NY, and this address was known by him to be false.
	c.  He violated Article 107, UCMJ in that he did on or near Soto Cano Airbase, Honduras, on or about 6 April 2010, with intent to deceive, submit to a CID special agent, a residential house lease agreement, dated 2 February 2009, which contained a statement that he was obligated to pay and in fact did pay rent in the amount of $2,100.00 per month, which was false, and was known by him to be false.

	d.  He violated Article 121, UCMJ in that he did on or near Soto Cano Airbase, Honduras, on divers occasions between on or about 10 March 2009 and  on or about 30 April 2010 steal Basic Allowance for Housing (BAH) entitlements, military property of a value of more than $500.00, the property of the United States.

4.  On 18 April 2011, in a closed hearing, having considered all matters presented, the UCMJ authority found him guilty of all specifications.  The punishment imposed consisted of a reduction to sergeant (SGT)/E-5, a written reprimand, a forfeiture of $1,482.00 pay per month for 2 months, and extra duty and restriction for 45 days.  The forfeitures, restriction, and extra duty were suspended for 6 months to be automatically remitted, if not sooner vacated.  He also directed the Article 15 be filed in the performance section of his OMPF.

5.  Item 10 (Allied Documents and/or Comments) of the Article 15 in question shows the commander complied with Army Regulation 27-10, paragraph 3-18 (f)(1), and the following items pertaining to the applicant were attached to the Article 15:

* Suspension of favorable personnel actions (FLAG) 
* Enlisted Record Brief (ERB) 
* CID investigation 

6.  On 18 April 2011, the applicant elected to appeal his punishment and submit additional matters.  His record does not contain any such matters for consideration.

7.  On 21 April 2011, he was reprimanded by the Commanding General (CG), U.S. Army South, Fort Sam Houston, TX for failing to correct his BAH location, knowingly claiming BAH at a higher rate than he was entitled from approximately 10 March 2009 to 30 April 2010, knowingly submitting a false DA Form 5960 and DD Form 1561, and submitting a false residential lease.


8.  The CG directed the DA Form 2627 and the GOMOR be filed in the performance section of the applicant's OMPF.  The FLAG and findings of the CID investigation were filed in the restricted section of his OMPF.

9.  Army Regulation 27-10 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 3-12 states NJP may not be imposed for offenses which were committed more than 2 years before the date of imposition.  Computation of this 2-year limitation is in accordance with the Article 43(c) and (d) of the UCMJ.  The period of limitations does not run when the Soldier concerned is absent without authority, fleeing from justice, outside the territory where the United States has no authority to apprehend, in the custody of civil authorities, or in the hands of the enemy.

	c.  Paragraph 3-37 b(1)(a) provides that the decision to file the report of NJP in the performance or restricted section of the OMPF will be made by the imposing commander at the time punishment is imposed.

10.  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.  

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument that it was improper to subject him to NJP for the offenses he committed over 2 years prior to the date of imposition outside of the statute of limitations for NJP is incorrect.

2.  His punishment under Article 15, UCMJ took place on 18 April 2011.  He signed a DA Form 5960 and DD Form 1561 on 10 March 2009.  He knowingly and falsely listed the address of his dependants in Brooklyn, NY on both of these forms.  This deception allowed him to receive BAH at a higher rate than he would have otherwise been entitled over an extended period.

3.  His argument that the offense occurred over 2 years before the punishment is incorrect.  He profited from the act of intentional false swearing on an official document every time he received a greater amount of BAH than to which he was entitled.  In essence this is the same as if he falsely swore on the official documents every month from 10 March 2009 to 30 April 2010 because he was legally obligated to make notification of any changes of status in address and to correct any information on the forms he knew to be false or incorrect.

4.  In addition, he provided a fraudulent residential housing agreement, dated
2 February 2009, to a CID agent on or about 6 April 2010.  This act is within the
2-year statute of limitations imposed by Army Regulation 27-10 and Article 43, UCMJ.

5.  These offenses began on 2 February 2009 when he procured a fraudulent lease, continued on 10 March 2009 when he falsely swore on official documents, and continued every month culminating on 30 April 2010 when he lied to a CID agent by providing him with a fraudulent residential housing agreement.

6.  Based on the evidence of record, it is clear that the acts occurred over a period beginning on 2 February 2009 ending on or about 6 April 2010.  This timeframe falls within the 2-year statute of limitations prescribed by Army Regulation 27-10 and Article 43, UCMJ.  The listing of the beginning date and origin of his course of misconduct explained his continuing offenses.  Descriptions of offenses under NJP are not governed by the strict rules that govern specifications at a court-martial.  Given the limited punishment he faced, he was not prejudiced by the inclusion of acts which occurred more than 2 years before his punishment under the circumstances of this case.
7.  Since the offenses fall within the 2-year statute of limitations, and he has not provided any evidence that an error or injustice occurred to a degree justifying removal, there is no basis for removing the Article 15 or the GOMOR from his OMPF.

8.  He has not sufficiently shown that the offenses he committed fell outside of the 2-year window established by the statute of limitations; therefore, he is not entitled to the restoration of his previous rank/grade of SSG/E-6.  He was appropriately found guilty of the offenses and he has suffered no injustice as a result of his NJP.

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20110021267



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ABCMR Record of Proceedings (cont)                                         AR20110021267



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