IN THE CASE OF:	  

		BOARD DATE:  3 July 2012

		DOCKET NUMBER:  AR20110022388 


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 reconsideration of his request for removal of a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), from his official military personnel file (OMPF).

2.  He states the Article 15 charged him with:

	a.  submitting a military biography to the Joint Information Operations Warfare Center (JIOWC) U.S. Army Reserve (USAR) Chief that was false in that he had not graduated from the:

* Military Intelligence Officer Basic Course (OBC)
* Aviation OBC
* Immigration and Naturalization Federal Law Enforcement Academy
* Troy State University with a master's degree in Public Administration

	b.  wrongfully wearing the Air Assault Badge, Army Aviator Badge, Bronze Star Medal, Purple Heart, and Joint Service Achievement Medal on his military uniform.

3.  He also states that:

	a.  wrongfully wearing unauthorized ribbons on his uniform and representing that he graduated from various military and civilian courses of study in a military biography was an honest mistake.

	b  He engaged the services of Mr. J____ Y____ of Résumé Builder to create a professional résumé for him and he submitted an unfinished draft when he was asked by the JIOWC USAR Chief to submit a biography to be considered for entry on active duty.

	c.  In the midst, he departed flight school on emergency leave due to his mother's terminal illness, but provided Mr. Y____ (of Résumé Builder) with a:

* DD Form 214 which showed his awards, badges, military information, etc.
* Military Intelligence direct-commissioning orders in lieu of a DA Form 1059 (Service School Academic Evaluation Report) for Military Intelligence OBC
* Aviation OBC phase I completion certificate
* Immigration and Naturalization Federal Law Enforcement award certificate and recruiting certificate, but he did not graduate from the Immigration and Naturalization Service (INS) Academy (he performed on-the-job training)
* master's degree in Public Administration (although he did not graduate from Troy State University, he changed majors and graduated from Our Lady of the Lake University)

	d.  The draft résumé Mr. Y____ sent contained multiple errors stating he had graduated from all of the above listed courses.  As a result, he sent Mr. Y____ the correct information with instructions to submit a corrected military bibliography to the JIOWC.  It was an honest mistake in communication between the three entities.

	e.  He believed he was authorized to wear the Air Assault Badge, Army Aviator Badge, Purple Heart, Bronze Star Medal, and Joint Service Achievement Medal because they were annotated on his DD Form 214 (Certificate of Release Discharge from Active Duty).

	f.  Punitive Article 107 of the UCMJ states that any person subject to this chapter who, with intent to deceive, signs any false record, return, regulation, order, or other official document, knowing it to be false or makes any other false official statement knowing it to be false shall be punished as a court-martial may direct.

	g.  Army Regulation 600-37 (Unfavorable Information), paragraph 3-4b(4), states that minor behavior infractions or honest mistakes chargeable to sincere but misguided efforts will not normally be recorded in a Soldier's OMPF.

4.  The applicant provides:

	a.  a copy of the Army Board for Correction of Military Records (ABCMR) Docket Number AR20100023923, dated 3 May 2011, wherein the ABCMR denied removal of the Article 15 from the applicant's OMPF;

	b.  his diploma from Our Lady of the Lake University; and

	c.  two memoranda.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100023923 on 3 May 2011.

2.  In support of his request for reconsideration the applicant provides the following documents which are considered new evidence and merit consideration by the Board:

	a.  A memorandum from the S-3, 78th Aviation Troop Command, Georgia Army National Guard, Marietta, GA, dated 5 January 2010, subject:  [Applicant's] Flight Pay Recoupment, states:

		(1)  He is making a favorable recommendation to resolve the applicant's flight pay issues based on his previously stating he was the applicant's aviation liaison officer when he left school due to a personal family emergency.

		(2)  The applicant left school in good standing on 1 October 2005 and was recommended to return to finish flight school after having spent a year in flight school prior to leaving.  As such, he was authorized to receive flight pay from 24 November 2004 to 1 October 2005.  Aviation Career Incentive Pay (ACIP) orders (which are not enclosed) do not have a termination date and his pay erroneously continued after he departed as a result.  This was a routine matter and the G-3 and finance offices should have coordinated during his out-processing.

		(3)  The applicant was not afforded a training allocation to return to training due to reservation shortages in 2006 and 2007.  He was mobilized for 2 years making it more difficult for him to return to flight school.  However, he kept himself proficient in the aviation field by completing the Aeromedical Evacuation Officer Advanced Qualification Course and by enrolling in the Aviation Captains Career Course.

		(4)  The S-3 opines that the applicant honestly believed he was still authorized flight pay while he was in a waiting status to return to flight training which he based off of 3 years of experience as a National Guard/Army Reserve liaison officer at Fort Rucker and as an aviator.  He had seen numerous cases where a flight school student was released prior to graduation and whose pay either terminated early or continued beyond the date he or she should have permanently changed station or the ACIP order expired.  He believes the applicant was mistaken in his belief that as long as he was in a waiting status he was eligible to receive flight pay.

		(5)  He recommends that the applicant's current chain of command and finance office coordinate the repayment of flight pay for the period 1 October 2005 to 2 March 2009 which he calculates as $5,976.00.

	b.  A copy of the applicant's diploma from Our Lady of the Lake University of San Antonio shows a Master of Business Administration Degree was conferred upon him effective 11 December 2010.

	c.  A memorandum from Mr. Y____, dated 28 October 2011, subject:  Military Biography Draft, states he drafted a military biography for the applicant several years.  However, some of the dates and other information were plugged in as place holders before he finalized it and needed to be corrected.

		(1)  While it was reasonable to assume he would get the information from the documents the applicant provided, such as his DD Form 214, military orders, course completion certificates, immigration and naturalization award certificate, recruiting certificates, and Master of Public Administration Degree Plan enrollment form, he assumed the applicant had completed initial entry rotary wing training, the final phase of the Aviation OBC, graduated from the INS Federal Law Enforcement Academy, and was on track to graduate with a master's degree in Public Administration from Troy University in 2005.

		(2)  When he prepared the bibliography, he was aware of the errors that needed to be corrected, such as the completion dates for schools and courses.  However, it was normal practice to plug in such information as place holders, then have the client correct them.  Per normal practice, he sent the biography to the applicant for corrections, but lost communication with him because he left school due to a family emergency.

		(3)  Please be assured that the applicant did not make those mistakes since he prepared the draft with "best guesses" knowing he would need to correct the errors before the biography was finalized, but lost touch with him and he was unable to get the correct information.

3.  After prior enlisted service in the USAR and Navy Reserve, the applicant was appointed as a second lieutenant in the USAR on 9 June 2004 and was promoted to first lieutenant on 8 June 2006.  He was ordered to active duty on 5 March 2007 and served on active duty until he was released on 4 September 2007.

4.  On 15 April 2010, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for:

	a.  conduct unbecoming an officer on or about 4 October 2007 for wrongfully and dishonorably submitting a military biography to the JIOWC Army Reserve Chief, with intent to deceive, which falsely stated he was a graduate of the Military Intelligence OBC, Aviation OBC, INS Federal Law Enforcement Academy, and had earned a master's degree in Public Administration from Troy State University; and

	b.  wearing an unauthorized insignia, decoration, badge, ribbon, device, or lapel button on or about 21 October 2008.  Specifically, he wrongfully and without authority wore the Army Air Assault Badge, Army Aviator Badge, Bronze Star Medal, Joint Service Achievement Medal, and Purple Heart upon his uniform.

5.  On 15 April 2010, his commander directed punishment by written reprimand and permanent filing of the original copy of his DA Form 2627 in the performance section of his OMPF.

6.  On the same date, he elected to appeal his NJP.  On 12 May 2010, his appeal was denied after the proceedings were found to have been properly conducted under law and regulation and the punishment was appropriate.  On 26 May 2010, he acknowledged the action taken.  On 6 January 2011, the DA Form 2627 was filed in the performance section of his OMPF.

7.  Army Regulation 27-10 (Military Justice) provides policy for the administration of military justice.  Chapter 3 prescribes requirements, policies, limitations, and procedures for the implementation and amplification of Article 15, UCMJ.  It provides 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.  The imposing commander is not bound by the formal rules of evidence before courts-martial and may consider any matter, including unsworn statements the commander reasonably believes to be relevant to the case.  Furthermore, whether to impose punishment and the nature of the punishment are the sole decisions of the imposing commander.  The regulation specifically provides:

	a.  Article 15 proceedings are not adversary in nature; neither the Soldier nor spokesperson (including any attorney present on behalf of the Soldier) may examine or cross-examine witnesses, unless permitted by the imposing commander.

	b.  The specific sequence of events in a formal Article 15 proceeding shall include:  (1) notification and explanation of rights, (2) a reasonable decision period for the Soldier to consult with counsel, (3) a hearing, (4) the imposition of punishment (if the accused is found guilty), and (5) the appeal process.

	c.  There is no prohibition against the imposition of punishment immediately upon the Soldier's acceptance of the Article 15 if the imposing commander finds the Soldier guilty of one or more of the charges after the hearing is completed.

	d.  Paragraph 3-37b(2) states that for Soldiers in the rank of sergeant/E-5 and above, the original of the DA Form 2627 will be sent to the appropriate custodian for filing in the OMPF.  The filing decision of the imposing commander is final, subject to review by superior authority.

	e.  Paragraph 3-43 contains guidance on the transfer or removal of records of NJP from the OMPF.  It states that application for removal of an Article 15 from a Soldier's OMPF based on error or injustice will be made to the ABCMR.  It further states 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.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military Personnel System.  It establishes principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support MILPER Information Management/Records.  It states that once placed in the OMPF, a document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the file unless directed by competent authority.

9.  Army Regulation 600-37 sets forth policies and procedures to:  (1) authorize placement of unfavorable information about Army members in individual official personnel files; (2) ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and (3) 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.  It establishes the Department of the Army Suitability Evaluation Board (DASEB) to hear appeals for removal of documents.  It provides that the DASEB may transfer records of NJP to the restricted portion of a Soldier's OMPF upon proof that the intended purpose has been served or that the transfer would be in the best interest of the Army.  The burden of proof rests with the Soldier concerned to provide substantial evidence that these conditions have been met.  Claims that an Article 15 is untrue or unjust, in whole or in part, will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the Article 15 in question from his OMPF was carefully considered and found to be without merit.

2.  The evidence of record shows the applicant's Article 15 proceedings were accomplished in accordance with the applicable regulations.

3.  The evidence of record confirms that all the documents submitted by the applicant with his original application to the ABCMR and his entire military record were fully reviewed and considered by the Board during its original review of this case in May 2011.  After consideration of all of the new material, there is insufficient evidence to conclude that the applicant's Article 15 was unjust, in error, or should be removed from his OMPF.

4.  The Article 15 was imposed in compliance with applicable laws, regulations, and policies.  The punishment imposed was neither unjust nor disproportionate to the offenses and there is no evidence of any substantive violation of any of the applicant's rights.

5.  The applicant's contention that he made honest mistake in believing he was authorized to wear the Air Assault Badge, Purple Heart, Bronze Star Medal, and Joint Service Achievement; had graduated from the Military Intelligence OBC, Aviation OBC, and INS Federal Law Enforcement Academy; earned a master's degree in Public Administration from Troy State; and was authorized flight pay was noted.  However, if he were not issued official orders, course completion documents, certificates, diplomas, and performing in a flight status, he had no reason to believe he completed training and earned these awards and badges.



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 to amend the decision of the ABCMR set forth in Docket Number AR20100023923, dated 3 May 2011.



      _______ _   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)                                         AR20110022388



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ABCMR Record of Proceedings (cont)                                         AR20110022388



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