IN THE CASE OF:	  

		BOARD DATE:	  12 June 2012

		DOCKET NUMBER:  AR20110022235 


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)) and all documents related to or associated with the nonjudicial punishment (NJP), e.g. General Officer Memorandum of Reprimand (GOMOR) and DA Form 67-9 (Officer Evaluation Report (OER)) for the period 27 March through 15 December 2008 from his military records.  He further requests reinstatement of his Top Secret/
Sensitive Compartmented Information (TS/SCI) clearance.

2.  The applicant states:

* the errors in his request for reimbursement were not a deliberate act to defraud the government, but rather the result of incomplete or misinformation provided him and the charges were blown out of proportion 
* the Joint Services commands to which he was assigned did not have personnel trained in the specifics of Army Reserve personnel matters
* he believes his rights to due process and a fair and impartial hearing under Army Regulation 27-10 (Military Justice) and Army Regulation 
623-3 (Evaluation Reporting System) were violated
* he did not seek legal counsel because he did not believe he had done anything wrong
* his case was initially dropped by his command in June 2008 only to be resurrected in October 2008
* he had only 2 days to decide whether or not to accept NJP and because of the short time frame he was unable to have witnesses testify in his behalf
* he admits the receipts he submitted were created by himself because the bank said they did not have the forms he needed
* he is a dedicated and highly respected officer who held a high security clearance that only 7 percent of the military hold and he has played a part in one of the "Ultra Top Secret" programs
* if the NJP stands the Army will be losing a dedicated officer who has brought honor to the military
* the officer who provided him with his reimbursement information was subsequently relieved for cause

3.  The applicant provides:

* a 3-page self-authored statement outlining his version of the events leading to the NJP
* four letters of support
* his DA Form 2627
* his GOMOR, dated 10 November 2008
* his DA Form 67-9 for the period 27 March through 15 December 2008

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides a cover letter to the Army Board for Correction of Military Records (ABCMR) stating he has been retained by the applicant and transmits the applicant's case.  He also states the applicant requested to appear before the Board.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a U.S. Army Reserve (USAR) military police lieutenant colonel with over 25 years of service.  On 2 June 2003, he was ordered to active duty as a major in support of Operation Noble Eagle/Enduring Freedom with several amendments and additional active duty orders resulting in continuous active duty through the current time.  He was promoted to his current rank effective 21 December 2007.

2.  The applicant received additional active duty orders on 19 April 2005 with reassignment to Fort Sam Houston, TX.  In concert with these orders, the applicant, who had been renting off-base housing, moved his family closer to Fort Sam Houston and purchased a home on 14 June 2005.

3.  From June 2005 to December 2005, the applicant submitted requests for reimbursement for lodging costs in the amount of $1,650.00 per month.  He discontinued the requests for reimbursement when his orders were changed from temporary duty (TDY) to permanent change of station (PCS).

4.  The U.S. Army Criminal Investigation Command, commonly known as CID, conducted an investigation of possible fraudulent claims for reimbursement by the applicant.  The investigating officers, Special Agent (SA) T------d and
SA F-------k, provide the following information:

	a.  the Army Internal Review, Office of the Assistant Secretary of the Army, Crystal City, VA, provided copies of a travel voucher packet to the Temporary Change of Station (TCS) Fraud Task Force, which had been submitted to the Defense Finance and Accounting Service (DFAS) by the applicant while assigned to Joint Information Center, Kelly Air Force Base, TX.  Their review of the packet revealed lease and lodging receipts that were suspected to be fraudulent.

	b.  CID received a memorandum from the TCS Task Force, Washington Battalion (CID), regarding an allegation of possible TCS fraud and commenced its investigation of the allegations.  The TCS Task Force stated they determined the applicant had committed fraud, larceny of government funds, and had made false official statements when he submitted fraudulent travel vouchers for reimbursement and that he had created false rental receipts for a property he actually owned.  The initial estimated loss to the Government was reported as $11,550.00.

	c.  On 9 June 2008, CID SA F-------k advised the applicant of his legal rights, which he waived in writing.

	d.  The applicant provided a sworn statement at this time.  He stated he had been mobilized in March 2003 and first lived in an apartment in the vicinity of Fort Sam Houston.  He was given a housing statement of non-availability (SNA) through the Lackland AFB lodging office.  After 6 months, he moved to a townhouse and completed a cost benefit analysis that determined the rental of the townhouse was a cost savings to the government.  As a result, his SNA was continued.  In June 2005, he purchased a home.  Since he had been granted an SNA and authorized reimbursement in the amount of $1,650.00 (the per diem rate for the San Antonio area was over $3,000.00 per month and his payment to Washington Mutual Bank was $1,742.42 per month), he thought his residence was still a cost savings to the government and continued to submit for the previously approved SNA amount.  In December 2005, his orders changed to a PCS and he ceased to submit for reimbursement.  In no way did he knowingly 

attempt to defraud the U.S. Government; he simply sought reimbursement for the amount that Army lodging had previously approved for him.  He stated he had not been briefed on what were authorized expenses or how they might differ between a rental unit and a purchased home.  He was willing to repay any amount to which he was not entitled.

	e.  SA F-------k collected handwriting examples from the applicant and received his consent to collect financial documents for the time frame being investigated.  The applicant provided his current amortization schedule from Washington Mutual Bank, 1301 Second Avenue, Seattle, WA 98101, for the property in question.  A review of the schedule revealed his monthly payments were $1,093.00, which included both interest and principal.  This gross amount was less than what the applicant claimed for reimbursement by $557.00.

	f.  SA T------d contacted Mrs. M--y C------o at the Washington Mutual Bank, who stated the receipts the applicant had submitted for rent purposes were fraudulent.  She stated Washington Mutual Bank does not rent property and further stated the letterhead for Washington Mutual Bank does not match the letterhead from the receipts.

	g.  Median County Tax Assessors Office records confirmed the applicant had purchased the property in 2005 and he had made the property tax payments since 2005.

	h.  An interview with Mrs. T----a. L. W------s, Fort Sam Houston Army Lodging office noted the applicant had conducted a cost benefit analysis to move from Army lodging to an off-post residence in accordance with regulations.  (The date of this cost analysis is not of record.)

	i.  The CID investigation determined the applicant had committed fraud, larceny of government funds, and making false official statements when he created false rental receipts for amounts he did not spend and submitted those receipts with his travel vouchers for housing rental reimbursement on a property he actually owned.

	j.  On 12 June 2008, SA T------d briefed Colonel (COL) K---n F. L---d (the applicant's superior), on the status of this investigation.  COL L---d stated she intended to pursue action amounting to less than a court-martial against the applicant.

5.  On 24 October 2008, the applicant submitted a letter to the Commander, Joint Information Operations Warfare Command that included a revised 

reimbursement estimate based on the differences in regulations for reimbursement for a rental unit vice a purchased home.  Based on the information provided, it was calculated he owed the government $1,017.85.

6.  On 10 November 2008, the applicant received NJP.  He was charged with making and using false Washington Mutual Bank rental receipts and bank checks for the purpose of obtaining payment in the amount of about $8,250.00.  The documents were known to be false rental receipts not created by Washington Mutual Bank and the checks were not written for the purpose of paying rent on any premises in which he was living.  The applicant elected not to demand trial by court-martial.  He requested an open hearing, requested a person to speak in his behalf, and did not present any matters of defense, mitigation, and/or extenuation.  His punishment consisted of a reprimand.

7.  On 10 November 2008, Major General K----l issued a GOMOR wherein he stated the applicant had created and submitted false checks and rental receipts for an amount in excess of authorized expenses, thereby receiving over-reimbursement of over $1,000.00.  By filing false documents in support of his claim, he showed a lack of integrity that compromised his ability to lead and put his military career at risk.

8.  On 13 November 2008, the applicant elected not to appeal the NJP punishment.

9.  The applicant's OER for the period 27 March 2008 through 15 December 2008 is a Relief for Cause OER based on receipt of the NJP and GOMOR.  While both his rater and senior rater noted his successful accomplishments, both stated his misconduct and the resulting loss of his security clearance caused them to question his integrity and overshadowed his duty performance.  He was rated in the unsatisfactory performance and do not promote blocks.  There is no evidence the applicant appealed this OER.

10.  The applicant has received orders retaining him on active duty through the current time.  However, his record does not contain any OER's subsequent to the 15 December 2008 report.

11.  The letters of support from senior officers for whom the applicant had worked, praised the applicant for his service and expertise.  He is described as dedicated, effective, and innovative, the go-to-man to get things done, and always there to help.  His integrity was never questioned.  His high-level duty assignments, multiple TDY's, three deployments to hostile fire zones, and high security clearance are noted.  One officer notes that during the period in question the applicant underwent a polygraph examination to obtain a higher clearance which he passed with no problems.

12.  Joint Federal Travel Regulations (JFTR) provide the basic statutory regulations concerning a Uniformed Service member’s travel and transportation entitlements, certain station allowances, housing allowances, and cost of living allowances.

	a.  Section U1055 (Appropriate Action for Failure to Follow JFTR) states each command/unit is expected to take appropriate disciplinary action when a member fails to follow the JFTR.  Disciplinary action should be for willful violations and may be in the form of counseling (oral/written), non-judicial action, or other appropriate means.  

	b.  Section U4137 (Allowable Expenses When a Residence is Purchased and Used for TDY Lodgings) states a traveler may purchase and occupy a residence at a TDY location.  The allowable expenses are the monthly mortgage interest, property tax, and utility costs actually incurred (does not include any installation and hookup charges), e.g., electricity, natural gas, water, fuel oil, sewer charges on a prorated based on the number of days in the month rather than by the actual number of days the traveler occupied the residence.  In no case may the total per diem payable exceed the applicable maximum locality rate for the area unless an exception is authorized/approved.

	c.  Section U4141 (Lodging Obtained on a Weekly, Monthly, or Longer Term Basis) states when a traveler obtains lodging on a weekly, or monthly, or longer term basis, the daily TDY lodging cost is computed by dividing the total periodic (e.g., weekly, monthly) lodging cost by the number of days the member is authorized the lodging portion of per diem.  This computation presumes that the member acts prudently in renting (emphasis added) by the week or month, and that the Government cost does not exceed the cost of renting conventional lodgings at a daily rate.  This provision does not apply when a residence is purchased.

13.  Army Regulation 600–37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  It states that once an official document has been properly filed in the Official Military Personnel File (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.  This does not include documents that have their own regulatory appeal 

authority such as evaluation reports and court-martial orders.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

14.  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.  NJP is imposed to correct misconduct in violation of the UCMJ.  Such conduct may result from intentional disregard of, or failure to comply with, prescribed standards of military conduct, misconduct resulting from simple neglect, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment.  Nonpunitive measures included administrative reprimands and admonitions.

	b.  Paragraph 3-18 (Notification and explanation of rights) states:

		(1)  if an imposing commander determines that proceedings are appropriate the Soldier will be notified of the imposing commander’s intent to initiate proceedings under UCMJ, Article 15 proceedings; what the maximum punishments that can be imposed under these proceedings; they have the right to remain silent; they have the right to demand trial by court-martial (the demand for trial by court-martial must be made at the start of the hearing prior to any consideration, examination, or presentation of evidence and the Soldier’s decision not to demand trial is irrevocable); they have the right to confront witnesses, examine the evidence, and submit matters in defense, extenuation, and/or mitigation; and they have the right to appeal.

		(2)  The Soldier will be given the opportunity to accept the NJP and request a reasonable time, normally 24 hours, to decide whether to demand trial by court-martial and to gather matters in defense, extenuation, and/or mitigation.

		(3)  Unless the Soldier demands trial by court-martial within the decision period, the imposing commander may proceed with the hearing.  The hearing will consist of the following:  consideration of evidence, written or oral, against the Soldier; an examination of available evidence by the Soldier; and any presentation by the Soldier of testimony of available witnesses or other matters, in defense, extenuation, and/or mitigation.

		(4)  the decision to appeal will be recorded in block 7 of the DA Form 2627.  The Soldier will be given a reasonable period of time (normally no more than 5 calendar days) in which to submit an appeal.
DISCUSSION AND CONCLUSIONS:

1.  The applicant is shown to have complied with the regulations for obtaining an SNA at or through at least two commands.  He stated that he did the calculations for this himself and therefore would have been aware that this was for reimbursement for rental housing (emphasis added). 

2.  He further demonstrated he was aware there were different provisions for reimbursement for housing under TDY orders from PCS orders as noted by the fact that when he received the PCS orders he stopped requesting reimbursement.

3.  Other than his personal statement, the applicant has not provided any documentation to support his claim that he was misinformed on what the requirements were for housing reimbursement or that the officer who allegedly provided him the incorrect information was relieved for cause because of this or similar incidents.

4.  By his own admission, the applicant created documents that show he was paying rent when, in fact, he was requesting reimbursement for authorized expenses for the purchase of a home.

5.  The applicant exhorts his high security clearance and performance in top secret programs as a reason for granting him relief.  While the potential loss of an officer with his qualifications would be significant, it must be noted that personnel with this level clearance must be above reproach and carry the responsibility of being held to a higher level of accountability than the average officer.

6.  The applicant has provided no evidence or explanation of how his rights were violated in the preparation of his relief for cause OER.  It was the opinion of his rater and senior rater that his actions, which resulted in the NJP and reprimand, were sufficiently serious to warrant the relief for cause OER.  The inclusion of references to these factors was necessary to justify the OER ratings.

7.  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)                                         AR20110022235



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ABCMR Record of Proceedings (cont)                                         AR20110022235



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