IN THE CASE OF:	  

		BOARD DATE:  5 April 2012 

		DOCKET NUMBER:  AR20120001281 


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 an Article 15 from the performance and restricted portion of her record and restoration of her original date of rank (DOR) of 1 March 2009 for staff sergeant (SSG)/E-6.

2.  She states, in effect, evidence was overlooked that led to the unjust imposition of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).  

3.  She provides a self-authored memorandum and documents identified in a list of enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 2 November 1999 and has served continuously since that date.  She was promoted to SSG/E-6 effective 1 March 2009.

2.  A Certificate of Training shows she completed the Army Basic Instructor Course during the period 1 July to 2 September 2010 at the Drill Sergeant School (DSS), Fort Jackson, SC.

3.  On 1 November 2010, her commander informed her he was considering whether she should receive NJP under Article 15, UCMJ, for:

	a.  being derelict in the performance of her duties by willfully failing to use her Government travel card (GTC) for official, travel-related expenses only (hereafter referred to as Charge 1); and 

	b.  failing to pay debt accrued on her GTC in the sum of $4,023.30 (hereafter referred to as Charge 2).

4.  On 5 November 2010, she elected not to demand trial by court-martial and elected to present in person matters in defense, extenuation, and/or mitigation.

5.  The documents she submitted presenting matters in defense, extenuation, and/or mitigation are filed in the restricted portion of her OMPF.  They include:

	a.  a self-authored memorandum for record in which she summarized the circumstances leading to unauthorized purchases and failure to pay accrued debt on her GTC.  She stated, in part:

* in May 2010, after completing an online application, she was issued a GTC prior to attending DSS
* on 19 May 2010, she was granted a divorce
* her agreement with her former spouse was that he would take care of their children until she finished training
* DSS began on 8 June 2010, and she provided her GTC during in-processing for Army Lodging
* in June, her former spouse decided he didn't want to care for their children any longer and dropped them off with her
* around that time, the Internal Revenue Service placed a levy on her due to incorrectly filed taxes resulting in garnishment of half of her normal pay
* she discovered her husband broke the lease on their apartment, resulting in her owing over $1,000
* she was required to pay spousal support and was told to pay for a vehicle for her former spouse
* she contacted Ms. M_______ to inquire what she could use her GTC for and was told it could be used for food, gas, and lodging and that she would be responsible for anything owed
* her understanding at the time was that as long as she used the GTC for food, gas, and lodging, she was making legal purchases
* even though her orders said the DSS would provide meals, she thought she could use the GTC to buy food so long as she paid the bill when it was due
* she rented a room for her children at an extended-stay hotel
* her graduation was set for 2 September 2010, but she was released early
* on 24 September 2010, she was called in early from leave and informed she had abused her GTC and owed $4,000 dollars
* she was told several e-mails had been sent to her of which she was unaware
* she signed a memorandum acknowledging the debt and sought advice on how to manage it
* earlier that day, she had paid off her former spouse's car in the amount of $3,250
* had she been aware of the debt on her GTC, she would have posted the $3,250 to that account
* she was later told to see if she could log onto Microsoft Outlook at which time she noticed the e-mails regarding her GTC
* she did not have access to her Outlook e-mail during DSS
* Ms. M_______ attempted to e-mail her at her Army Knowledge Online (AKO) address, but used the wrong account name
* she e-mailed Ms. M_______ via AKO to inform her her GTC had been declined in August
* Ms. M_______ replied to that e-mail, but did not address abuse of the card, instead telling her she would resolve the card decline issue
* in late September or early October, a Ms. S____ informed her she should have received GTC training and signed a Statement of Understanding before receiving her GTC
* she had done neither prior to or during DSS
* she completed a training course on the GTC and received a certificate dated 1 October 2010
* she paid off her GTC on 29 October 2010

   b.  a Final Judgment and Decree of Divorce showing she was divorced on 19 May 2010;
   
   c.  a list of room charges for Fort Jackson Lodging during the period 9 June to 31 August 2010;
   
   d.  a list of room charges for Extended Stay America Columbia – Fort Jackson, Columbia, SC, for the period 19 June to 14 September 2010; 
   
   e.  a memorandum to her commander, dated 23 September 2010, from the Director of Resource Management, U.S. Army Signal Center of Excellence and Fort Gordon, Fort Gordon, GA, informing her commander:
   
* she was over 30 days delinquent on her account
* her balance was $4,023.30
* while attending DSS, she charged $7,323.30 to her GTC
* the GTC contract required all outstanding charges be paid by the date specified on the billing statement
* her GTC privileges were suspended
* she should be notified of the action and counseled on use of the GTC
* in addition to the delinquency, she charged numerous meals and food items despite the requirement that DSS students eat all meals in the dining facility
* she charged on-post and off-post lodging while attending DSS
* non-compliance or failure to adhere to GTC guidelines could result in disciplinary action
* the delinquent balance was to be resolved by 6 October 2010

   f.  a note in which she listed her Microsoft Outlook and AKO e-mail contact information and stated, in part, she did not have her Microsoft Outlook account configured to forward e-mail to her AKO account and Microsoft Outlook accounts can only be accessed at the installation a Soldier is assigned to;
   
   g.  e-mail traffic showing administrative staff attempted to contact her at her Microsoft Outlook and AKO addresses in July, August, and September 2010 regarding charges on her card and the balance due; 
   
   h.  e-mail traffic in which she stated her payment plan for paying the balance due by 30 October 2010;
   
   i.  e-mail traffic showing attempts were made to locate documentation of her training on use of the GTC and showing she was told to complete the training on 30 September 2010; 
   
   j.  receipts for payments on a car title loan made on 24 September 2010; 
   
   k.  a certificate, dated 1 October 2010, showing she completed the Defense Travel Management Office mandatory Travel Card Program; and
   
   l.  a Citibank Government Card Services invoice, dated 11 October 2010, showing a past-due balance of $2,373.30.
 
6.  On 5 November 2010, her commander found her guilty of Charge 1 and Charge 2 and directed the DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) be filed in the performance section of her OMPF.  Her punishment was reduction to sergeant (SGT)/E-5, extra duty for 45 days, restriction (suspended, to be automatically remitted if not vacated before 4 January 2011), and oral reprimand.  She did not appeal the punishment.

7.  Her record in the Total Army Personnel Database – Active Enlisted shows she is currently serving as a SSG/E-6 with a DOR of 1 December 2011.

8.  She provides, in part:  

	a.  A self-authored memorandum in which she states, in part, the following information should be considered for her appeal:

* her GTC payments were not late as suggested
* she did not receive any GTC statements while attending DSS
* her travel voucher was amended several times, repeatedly adjusting funds for which she was approved
* she was set up on a split disbursement through which Citibank received payment in July and August and in September and October 2010 she paid off the GTC
* she paid her debt on 29 October 2010
* her travel voucher was filed on 18 November 2010, due to Defense Travel System clerks not understanding the system and the voucher was finally settled on 14 October 2011
* she did not receive training on the use of the GTC prior to the start of DSS as mandated by the rules governing the program
* her GTC was not properly issued
* her purchases [on her GTC] were always food, gas, and lodging
* she used cash advances [from the GTC] to purchase uniforms and necessary items not provided by Fort Gordon's Central Issue Facility
* she did not deviate from her understanding by purchasing items such as rings, laptops, or televisions
* her battalion commander told her she was guilty because she was a SSG in the U.S. Army with 11 years [of service] and should have known better
* it was never her intent to deceive the Government

	b.  Five Citibank Government Card Services invoices.  The invoices dated 11 August, 11 September, and 11 October 2010 show amounts past due.  The invoice dated 11 November 2010 shows she completed paying the balance due on 29 October 2010.  

	c.  Three DD Forms 1610 (Request and Authorization for TDY [Temporary Duty] Travel of DOD [Department of Defense] Personnel), one dated 4 May 2010 and two dated 27 May 2010, requesting authorization to travel from August, GA, to Fort Jackson, SC, for training.  Two of the forms show the statement "DSS students will eat at the dining facility regardless of installation of assignment."  One of the forms dated 27 May 2010 includes the following statement:

"The Travel and Transportation Reform Act of 1998 stipulates that the government-sponsored, contractor-issued travel card shall be used by all U.S. Government personnel (civilian and military) to pay for costs incident to official business travel unless specifically exempted by authority of the Administrator of General Service or the head of the agency."

	d.  An unsigned, undated memorandum for record bearing the signature block of Ms. M_______ stating, in effect, that at the time the applicant received her GTC, Ms. M_______ did not have a procedure in place to ensure individuals receiving a GTC would receive the required training and sign a Statement of Understanding prior to travel, but she would always brief the traveler on what could be charged on a GTC.

	e.  An unsigned memorandum, dated 2 January 2012, bearing the signature block of the Command Sergeant Major, Headquarters, 10th Sustainment Brigade, Bagram Airfield, Afghanistan, to the Commander, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN, supporting her request for correction of a Noncommissioned Officer Evaluation Report (NCOER) and other records reflecting misuse of her GTC.  He stated he had reviewed documents provided by the applicant and believed it was clear she did not misuse her GTC and was not indebted to the Government.  He also stated he had never witnessed an Article 15 and negative comments on an NCOER as punishment for misuse of a GTC.

9.  The Office of the Deputy Assistant Secretary of the Army (Financial Operations), in a document entitled "Army Travel Card Program," dated 1 January 2009, outlined the responsibilities of GTC users and administrative procedures for the Army Travel Card Program.  The document states, in pertinent part:

	a.  Individually Billed Accounts (IBA) are issued to individual government travelers for their use in paying their personal travel expenses related to their official travel.  The cardholder, not the government, is responsible for payment of any charges made on the account.  The cards are for official use only and the cardholder is required to read the cardholder agreement and sign a DOD Statement of Understanding acknowledging that fact.  The traveler accepts the conditions set forth in the cardholder agreement when they sign the charge card application and affirms their understanding of the conditions of proper use of the charge card when they sign the Statement of Understanding.  The Statement of Understanding also notifies the cardholder of disciplinary/administrative actions that are possible if the card is abused, misused, or the account becomes delinquent.  Traveler’s responsibilities for charge card payment are outlined in the Department of Defense Financial Management Regulations (DODFMR) Volume 9 Chapter 3.

	b.  Each command, organization, or unit will typically have an individual appointed by the commander or agency head to serve as their Agency Program Coordinator (APC).  Since the APC is responsible for the day-to-day administration of the travel card program, commanders and heads of agencies should ensure that the function is adequately resourced to meet the travel card requirements of the organization.

	c.  APC duties include, but are not limited to, using the contractor’s Electronic Account System to monitor account activity, review and print management reports, adjust account limits to meet mission requirements, assist in the completion and processing of applications, and activate and deactivate individual travel charge cards.  Specific APC management responsibilities are detailed in the DODFMR Volume 9 Chapter 3.  APCs are required to ensure that cardholders complete travel charge card program training prior to issuance of a travel card.  To meet this objective, travel charge card program information and training modules are available at the Defense Travel Management Office website.

	d.  The Travel and Transportation Reform Act (TTRA) of 1998, requires that government employees pay expenses related to official travel with a government charge card unless otherwise exempt from mandatory use.  The use of the travel charge card is mandatory to pay transportation costs, rental car, and lodging, while meals and incidental expenses are exempt from mandatory use….You are required to pay your bill, in full, when it is due.  Amounts due and not paid become past due at 30 days and the account becomes delinquent at 60 days.  Delinquent accounts are placed in a suspended status making them unavailable for use until the past due balance is paid.

	f.  The government travel charge card is a safe convenient tool you can use to pay your travel expenses.  In fact, the entire process is very simple.  You travel, you charge official travel expenses to your travel card and (upon return) you file your travel claim and use the split disbursement option to pay off those charges.  

	g.  Prior to receiving your travel charge card you will be asked to read the Citibank cardholder agreement which will provide program and travel card use information and restrictions.  You will then be asked to attest, by signing the space provided on the paper application or indicating acceptance on the on-line application, to the fact that you have read, understand, and will abide by the provisions of the agreement.  A travel charge card will not be issued if this action is completed.  The cardholder agreement is an agreement between you and the bank.  You will also be asked to read and sign a DOD Statement of Understanding where you will attest to the fact that you understand proper use of the travel charge card and understand the penalties that are possible for abuse, misuse, and delinquency.

	h.  In addition, you will be provided a briefing by your organization's APC that further explains the travel card program and any requirements that are unique to your organization.  

10.  The Citibank GTC IBA application includes a DOD Travel Card Program Cardholder Account Agreement.  The agreement provides parameters for use of the GTC and specifically states the applicant agrees not to use the GTC for personal, family or household purposes.  It also states billing statements are due and payable, in full, upon receipt of the statement but must be received by the bank no later than 25 calendar days from the closing date on the statement in which the charge appeared.

11.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Chapter 3 states 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.  NJP may be set aside or removed upon a determination that under all the circumstances of the case, a clear injustice has resulted.

	a.  Paragraph 3-6 addresses filing of NJP and provides that a commander's decision whether to file a record of NJP in the performance section of a Soldier's OMPF is as important as the decision relating to the imposition of NJP itself.  In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier's career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility.  In this regard, the imposing commander should consider the Soldier's age, grade, total service (with particular attention to the Soldier's recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section.  However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline.  In such cases, the record should be filed in the performance section.

	b.  Paragraph 3-28a states the basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of NJP has resulted in a clear injustice.  “Clear injustice” means that 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.

	c.  Paragraph 3-37b(1)(a) states the decision to file the original DA Form 2627 in the performance or restricted portions in the OMPF will be made by the imposing commander at the time NJP is imposed.  The filing decision of the imposing commander is subject to review by superior authority.  For Soldiers in the ranks of sergeant and above, the original will be sent to the appropriate custodian for filing in the OMPF.

12.  The Manual for Courts-Martial (MCM) states the elements of dishonorably failing to pay a just debt are:

   a.  that the accused was indebted to a certain person or entity in a certain sum;

   b.  that this debt became due and payable on or about a certain date;

   c.  that while the debt was still due and payable the accused dishonorably failed to pay this debt; and

   d.  that under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces.

13.  The MCM further states more than negligence in nonpayment is necessary. The failure to pay must be characterized by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment or grossly indifferent attitude toward one’s just obligations.

14.  Army Regulation 600-8-104 (Military Personnel (MILPER) Information Management/Records) prescribes the policies and mandated operating tasks for the MILPER Information Management/Records Program of the MILPER 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 an OMPF or moved to another part of the OMPF unless directed by competent authority.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record partially supports the applicant's request.  

2.  The evidence supports Charge 1.  

   a.  She states, in effect, she believes all of the purchases she made using her GTC were authorized.  However, to complete her online application, she had to sign a Cardholder Account Agreement stipulating she would not use the GTC for personal, family or household purposes.  She then proceeded to use her GTC to feed and house her family.  
   
   b.  Her argument that she was not properly trained on the GTC is not compelling.  While it appears she did not receive all required training when the card was issued, the Cardholder Account Agreement adequately stated the limitations on the use of the GTC.  If she failed to read the agreement when she completed her application, it is her fault alone.

3.  There is insufficient evidence to support Charge 2, and it would be appropriate to set this charge aside.  

   a.  She did, in fact, pay her debt, and she went to great lengths to do so relatively quickly.  
   
   b.  In determining she was guilty of this charge, the imposing authority did not follow guidance in the MCM stating the failure to pay must be characterized by deceit, evasion, false promises, or other distinctly culpable circumstances indicating a deliberate nonpayment or grossly indifferent attitude toward one's just obligations.  She exhibited none of those behaviors.  

4.  As a result of setting aside Charge 2, it would be appropriate to reconsider the punishment she received.  

   a.  Her punishment was reduction to SGT/E-5, extra duty for 45 days, restriction (suspended, to be automatically remitted if not vacated before 4 January 2011), and oral reprimand.  
   
   b.  She has specifically requested restoration of her original DOR for 
SSG/E-6.  With Charge 2 set aside, this portion of her punishment is overly harsh.  It would be appropriate to restore her DOR for SSG/E-6 to 1 March 2009 and pay her any back pay and allowances she is due as a result.  

5.  The applicant's request for removal of the Article 15 from her record was carefully considered.  Although the evidence does not support Charge 2, it does support Charge 1, and it is appropriate that documentation of this misconduct remain in her record.  However, considering the evidence in this case, it would be appropriate to transfer the DA Form 2627 documenting this punishment and any related documents to the restricted portion of her record.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X ___  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  _______  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  setting aside Charge 2;

	b.  setting aside the portion of her punishment pertaining to reduction to 
SGT/E-5 and restoring her DOR for SSG/E-6 to 1 March 2009; 

	c.  transferring the DA Form 2627 and any related documents to the restricted portion of her record; and

	d.  paying her any pay and allowances she is due as a result of these corrections.






2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the Article 15 from her record.



      _______ _   _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)                                         AR20110009611



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